European journalism interesting practices and innovative legislations

Flagship proposals

Concrete political proposals in support of a civic and social European journalism. Come and comment them !


Views on media and media policies. Do you agree with them?

In the news

Events to attend and news to share

In French

Articles et propositions en français

Home » Events

The forthcoming of the European Initiative on Media Pluralism

Submitted by on September 10, 2012 – 10:59No Comment

On August 9, The Euro­pean Ini­tia­tive on Media Plu­ral­ism (EIMP) was sub­mit­ted to the Euro­pean Com­mis­sion, by a Cit­i­zens’ Com­mit­tee of rep­re­sen­ta­tives from Italy, Hun­garia, France, Nether­lands, Por­tu­gal, United King­dom, Bul­garia, Roma­nia and Bel­gium. Once the EIMP is approved by the Euro­pean Com­mis­sion, its suc­cess will strongly depend on each of us, by join­ing the call.

After many unsuc­ces­ful attempts from Mem­bers of the Euro­pean Parliament, asking the Com­mis­sion to act in the field of plu­ral­ism, the Euro­pean Cit­i­zen Ini­tia­tive is our only way to urge the Euro­pean Com­mis­sion to make a deci­sive step.

The Euro­pean Cit­i­zen Initiative’s tool, as it was adopted, may be debated. How­ever, this is a great oppor­tu­nity for cit­i­zens to take part in Euro­pean poli­cies and con­strain the Euro­pean Union to seize their claim for bet­ter defense of their Fun­da­men­tal Rights. Because plu­ral­ism is not a sim­ple mat­ter of com­pe­ti­tion. It means that every cit­i­zen can access to an accu­rate and plu­ral­is­tic infor­ma­tion, con­fronting dif­fer­ent points of views and voices.

Please find below the text of the Ini­tia­tive:

Our Com­mon Action

The fol­low­ing text rep­re­sents a pro­posal for a Euro­pean Cit­i­zens’ Ini­tia­tive on the Pro­tec­tion of Plu­ral­ism within the Media through the par­tial har­mon­i­sa­tion of national rules on media own­er­ship and trans­parency, and by set­ting stan­dards at EU level for the suf­fi­cient inde­pen­dence of media super­vi­sory bod­ies in the Mem­ber States.

Endorse­ment of a Euro­pean Direc­tive on Media Pluralism

  • Object of the Proposition

We demand amend­ments to the Audio­vi­sual Media Ser­vices Direc­tive (or the adop­tion of new direc­tive to the Audio­vi­sual Media Ser­vices Direc­tive) aim­ing at a par­tial har­mon­i­sa­tion of national rules on media own­er­ship and trans­parency, and set­ting EU stan­dards for the suf­fi­cient inde­pen­dence of the media super­vi­sory bod­ies, also as nec­es­sary steps towards the cor­rect func­tion­ing of the inter­nal mar­ket. Such leg­is­la­tion, in accor­dance with Arti­cle 11, par. 2, of the Char­ter of Fun­da­men­tal Rights of the Euro­pean Union, will also pro­mote a more intense pro­tec­tion of fun­da­men­tal rights and the pub­lic inter­est objec­tives of main­tain­ing the plu­ral­ism and the inde­pen­dence of the media, a demo­c­ra­tic, open pub­lic dis­course, and the free exchange of ideas and infor­ma­tion in the Euro­pean Union.

  • Descrip­tion of the Objec­tives of the Proposal

This pro­posal aims at intro­duc­ing har­monised rules in national leg­is­la­tions with regard to the pro­tec­tion of plu­ral­ism in the media. Famous recent cases have demon­strated how urgent is the adop­tion of com­mon stan­dards in this field, since, as made clear by EU Com­mis­sioner Neelie Kroes in her speech deliv­ered on 17th Jan­u­ary 2011 regard­ing the EU Commission’s exam­i­na­tion of Hun­gar­ian media laws, the legal enforce­ment pow­ers of the Com­mis­sion regard­ing fun­da­men­tal rights are lim­ited to cases where the Mem­ber States act in the sphere of Euro­pean Law. This new leg­is­la­tion will defin­i­tively fill the gap reported by the Com­mis­sion, which had already sug­gested in its draft pro­posal to the Audio­vi­sual Media Ser­vices Direc­tive that Mem­ber States should guar­an­tee the inde­pen­dence of the media super­vi­sory bod­ies. Had this pro­posal of the Com­mis­sion become part of the AVMS Direc­tive some years ago, it would have been a clear and enforce­able rule that mem­bers of the Media Coun­cil in Hun­gary could not have been selected exclu­sively by the gov­ern­ing super-majority in the national Parliament.

Undoubt­edly, the increase in num­ber and capac­ity of infor­ma­tion providers, includ­ing new media, can­not be under­es­ti­mated. Nev­er­the­less, as made clear in var­i­ous Res­o­lu­tions of the Euro­pean Par­lia­ment (as well as, in another legal con­text, Res­o­lu­tions and Dec­la­ra­tions of the Coun­cil of Europe), even an increas­ing num­ber of infor­ma­tion out­lets can be con­trolled, either directly or indi­rectly, by few actors. In sev­eral Mem­ber States there have been and there still are sit­u­a­tions in which an exces­sive media power has brought/brings about real dom­i­nant posi­tions in mass media mar­kets as well as undue inter­fer­ence by polit­i­cal power in the own­er­ship and con­trol of com­mu­ni­ca­tion oper­a­tors. More­over, the pres­sure that some gov­ern­ments put on the media, espe­cially those of the pub­lic TV and radio broad­cast­ing ser­vice, as well as on the admin­is­tra­tive author­i­ties imple­ment­ing – and enforc­ing – the rules on infor­ma­tion plu­ral­ism, is alarming.

Every cit­i­zens’ ini­tia­tive pro­posal for the adop­tion of a new leg­is­la­tion shall fall within the sphere of leg­isla­tive com­pe­tence of the Euro­pean Union. The Euro­pean Union can exer­cise its com­pe­tences when­ever the proper func­tion­ing of the inter­nal mar­ket is neg­a­tively influ­enced by the exis­tence and appli­ca­tion of dif­fer­ent national pro­vi­sions in any sec­tor which is not expressly excluded from the found­ing Treaties. Notably, Euro­pean leg­is­la­tion on media already deals with cul­tural diver­sity, as in the case of the AVMSD (Audio­vi­sual Media Ser­vices Direc­tive) rules on quo­tas of Euro­pean pro­duc­tion, so there is no rea­son to deny com­pe­tence on media own­er­ship, whose ulti­mate goal is to guar­an­tee polit­i­cal and cul­tural diver­sity. In par­tic­u­lar, the suf­fi­cient inde­pen­dence of the media super­vi­sory bod­ies is a pre­con­di­tion not only for free­dom of the press and more broadly for free­dom of speech as well, but also for the proper func­tion­ing of the inter­nal mar­ket as arbi­trary polit­i­cal inter­ven­tions can­not be rec­on­ciled with reli­able mar­ket conditions.

In prac­tice, an analy­sis of national pro­vi­sions on mass media own­er­ship brings out the fact that there are dif­fer­ent para­me­ters to define posi­tions prej­u­di­cial to plu­ral­ism (num­ber of chan­nels con­trolled, resources, audi­ence share). More­over, the var­i­ous national leg­is­la­tions in Europe adopt very dif­fer­ent solu­tions to tackle posi­tions prej­u­di­cial to plu­ral­ism, and con­tain diverg­ing rules con­cern­ing incom­pat­i­bil­ity between polit­i­cal (lato sensu) activ­i­ties and own­er­ship or con­trol of mass media / media con­troller (“dis­qual­i­fied per­sons”). Finally, whereas some coun­tries impose oblig­a­tions to ensure trans­parency of media own­er­ship as well as finan­cial trans­parency, other coun­tries still do not have adopted such rules. These dif­fer­ences endan­ger the func­tion­ing of the inter­nal mar­ket by hin­der­ing the right of estab­lish­ment (art. 49 TFEU) and the free move­ment of ser­vices (art. 56 TFEU) and at the same time put at risk the free­dom of expres­sion and infor­ma­tion, as pro­tected by Arti­cle 10 of the Euro­pean Con­ven­tion on Human Rights and Arti­cle 11 of the Char­ter of Fun­da­men­tal Rights of the Euro­pean Union.

If it is com­mon knowl­edge that, on the basis of the prin­ci­ple of supremacy of EU law, national rules which restrict or hin­der the func­tion­ing of the inter­nal mar­ket should be set aside, it is also true their very 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. More­over, accord­ing to the case law of the Court of Jus­tice of the Euro­pean Union, a Mem­ber State may invoke the pro­tec­tion of media plu­ral­ism as an over­rid­ing require­ment relat­ing to the gen­eral inter­est which jus­ti­fies a restric­tion on the free­dom to pro­vide services.

In Court of Jus­tice case law regard­ing tele­vi­sion “Sticht­ing Col­lec­tieve Anten­nevoorzien­ing Gouda and Oth­ers v. Com­mis­sari­aat voor de Media”, of July 25, 1991 (Case C-288/89), the Court stated that “A cul­tural pol­icy under­stood in that sense may indeed con­sti­tute an over­rid­ing require­ment relat­ing to the gen­eral inter­est which jus­ti­fies a restric­tion on the free­dom to pro­vide ser­vices. The main­te­nance of the plu­ral­ism which that Dutch pol­icy seeks to safe­guard is con­nected with free­dom of expres­sion, as pro­tected by Arti­cle 10 of the Euro­pean Con­ven­tion on Human Rights and Fun­da­men­tal Free­doms, which is one of the fun­da­men­tal rights guar­an­teed by the Com­mu­nity legal order”.

In the Judg­ment of the Court of Jus­tice “Michaniki AE v Eth­niko Symvoulio Radi­otile­o­ra­sis and Ypour­gos Epikrateias”, of Decem­ber 16, 2008 (Case C-213/07), the Court accepted the argu­ment put for­ward by the Greek Gov­ern­ment, accord­ing to which “national mea­sures estab­lish­ing an incom­pat­i­bil­ity between the pub­lic works sec­tor and that of the media are com­pat­i­ble with EU rules on free­dom of estab­lish­ment since they intend to pur­sue a legit­i­mate aim which per­mits restric­tion to the fun­da­men­tal eco­nomic free­doms guar­an­teed by the Treaties”. The Court ruled that “a Mem­ber State’s desire to pre­vent the risks of inter­fer­ence of the power of the media in pro­ce­dures for the award of pub­lic con­tracts is con­sis­tent with the pub­lic inter­est objec­tive of main­tain­ing the plu­ral­ism and the inde­pen­dence of the media (see, in this respect, Case C-368/95 Vere­inigte Famil­i­a­press Zeitungsverlags-und Ver­triebs GmbH v. Hein­rich Bauer Ver­lag [1997] ECR I-3689, para­graph 18, and Case C-250/06 United Pan-Europe Com­mu­ni­ca­tions Bel­gium and Oth­ers [2007] ECR I-11135, para­graphs 41 and 42)”.

In brief, the com­plex­ity cre­ated by a patch­work of dif­fer­ent national rules and the fact that in each coun­try the media mar­ket and/or the pub­lic ser­vice media are com­ing under increas­ing polit­i­cal pres­sure dis­cour­ages com­pa­nies from enter­ing new mar­kets, in par­tic­u­lar where sub­jects hold­ing shares in a media under­tak­ing also play a sig­nif­i­cant role in the polit­i­cal arena. This jus­ti­fies the full com­pe­tence of the Union to take action through an approx­i­ma­tion of national laws (arts. 26, 50 and 114 of the Treaty on the Func­tion­ing of the Euro­pean Union). As a gen­eral rule, in shap­ing these new pro­vi­sions, the Union is required to uphold the high­est 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.

For the above-mentioned rea­sons, the sig­na­to­ries of this ini­tia­tive believe that the har­mon­i­sa­tion of rules on pro­tec­tion of infor­ma­tion plu­ral­ism is nec­es­sary. These rules could be tai­lored in a way that takes into account the spe­cific fea­tures of mass media com­pared to infor­ma­tion dis­sem­i­nated through the new indi­vid­ual media, on the pat­tern of the dif­fer­en­ti­ated leg­is­la­tion which has already been adopted in the Audio­vi­sual Media Ser­vices Direc­tive (2010/13/EU).

With full respect of the prin­ci­ple of sub­sidiar­ity, the pro­posed amend­ment of the AVMS Direc­tive (or the new Direc­tive) should adopt an approach of min­i­mal, but suf­fi­cient har­mon­i­sa­tion of rules and pro­ce­dures. Fol­low­ing the model of the AVMS Direc­tive, it should include only the com­mon rules nec­es­sary to reach the above men­tioned goals, with­out imped­ing the adop­tion of more severe rules by national leg­is­la­tors. Thus, the basic prin­ci­ple should be the fol­low­ing: “The Mem­ber States shall adopt the mea­sures needed to ensure plu­ral­ism and inde­pen­dence of the audio­vi­sual media sec­tor. The Mem­ber States shall ban the cre­ation and reten­tion of dom­i­nant posi­tion on the media mar­ket and related mar­kets”. A clear rule shall estab­lish an incom­pat­i­bil­ity between media sec­tor and polit­i­cal activ­i­ties (“con­flicts of inter­est” of mem­bers of the national and Euro­pean Par­lia­ments as well as mem­bers of the national Gov­ern­ments and of the Com­mis­sion). Also, clear rules shall require Mem­ber States to invest inde­pen­dent author­i­ties with the nec­es­sary pow­ers to apply the rules, and there­fore guar­an­tee their inde­pen­dence vis-à-vis eco­nomic and polit­i­cal influence. 

More­over, as an addi­tional legal basis, it should be stressed that an informed exer­cise of Euro­pean Cit­i­zen­ship Rights, espe­cially of the right to par­tic­i­pate in the Euro­pean elec­tions under art. 22 of the Treaty on the Func­tion­ing of the Euro­pean Union, implies and requires the absence of dom­i­nant posi­tions in mass media mar­kets, espe­cially if those hold­ing these dom­i­nant posi­tions are polit­i­cally active.

We there­fore ask the Euro­pean Com­mis­sion, in line with the request put for­ward by the Euro­pean Par­lia­ment in sev­eral occa­sions (lastly in its Res­o­lu­tion of March 2011 on the Hun­gar­ian Media Law) to present a for­mal pro­posal of direc­tive with a view to har­mon­is­ing national leg­is­la­tion on media plu­ral­ism and on national reg­u­la­tory author­i­ties, whose inde­pen­dence from eco­nomic as well as polit­i­cal influ­ence should be strongly guar­an­teed fol­low­ing the model of the Elec­tronic Com­mu­ni­ca­tions Directives.

  • Legal Basis

The Treaty reg­u­la­tions con­sid­ered rel­e­vant to the pro­posed ini­tia­tive are the following:

Gen­eral Framework

  • Arti­cle 2 TEU states that the EU “is founded on the val­ues of respect for human dig­nity… the rule of law and respect for human rights”. It adds that “these val­ues are com­mon to the Mem­ber States in a soci­ety in which “plu­ral­ism prevail[s]”.
  • Arti­cle 3, n. 3, TEU, pro­vides that “The Union shall estab­lish an inter­nal market”.
  • Arti­cle 26, n. 1, TFEU, pro­vides that “The Union shall adopt mea­sures with the aim of estab­lish­ing or ensur­ing the func­tion­ing of the inter­nal mar­ket, in accor­dance with the rel­e­vant pro­vi­sions of the Treaties”.
  • Arti­cle 167, n. 4, pro­vides that “The Union shall take cul­tural aspects into account in its action under other pro­vi­sions of the Treaties, in par­tic­u­lar in order to respect and to pro­mote the diver­sity of its cultures”. 
  • The Pre­am­ble of the Char­ter of Fun­da­men­tal Rights of the Euro­pean Union pro­vides that “The Union (…) rec­og­nizes the rights, free­doms and prin­ci­ples set out hereafter”.
  • Arti­cle 11 of the Char­ter is ded­i­cated to the Free­dom of Expres­sion and Infor­ma­tion. It states that “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”. If it is true that the Char­ter in itself does not pro­vide for new com­pe­ten­cies of the Union, this pro­posal does not go beyond the lim­its of the found­ing Treaties, since it is based on the pro­vi­sions which con­fer to the Union the power to ensure the proper func­tion­ing and estab­lish­ment of the inter­nal market.
  • Arti­cle 51, n. 1, of the Char­ter states that “The pro­vi­sions of this Char­ter are addressed to the insti­tu­tions, bod­ies, offices and agen­cies of the Union with due regard for the prin­ci­ple of sub­sidiar­ity (…). They shall there­fore respect the rights, observe the prin­ci­ples and pro­mote the appli­ca­tion thereof in accor­dance with their respec­tive pow­ers and respect­ing the lim­its of the pow­ers of the Union as con­ferred on it in the Treaties”.

The legal basis specif­i­cally refers to:

  • Arti­cle 50, n. 1, TFEU states that “In order to attain free­dom of estab­lish­ment as regards a par­tic­u­lar activ­ity, the Euro­pean Par­lia­ment and the Coun­cil, act­ing in accor­dance with the ordi­nary leg­isla­tive pro­ce­dure and after con­sult­ing the Eco­nomic and Social Com­mit­tee, shall act by means of directives”.
  • Arti­cle 114, par. 1, states that “The Euro­pean Par­lia­ment and the Coun­cil shall, act­ing in accor­dance with the ordi­nary leg­isla­tive pro­ce­dure and after con­sult­ing the Eco­nomic and Social Com­mit­tee, 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”.

Related posts:

  1. Let’s join now the Euro­pean Ini­tia­tive for Media Pluralism
  2. Towards a Euro­pean Ini­tia­tive for Media Plu­ral­ism — March 31st, 2011
  3. 26 April 2012: Launch of the Euro­pean Ini­tia­tive for Media Pluralism
  4. Defend­ing media plu­ral­ism by mon­i­tor­ing threats in the Mem­ber States
  5. Cit­i­zen ini­tia­tive for Media Plu­ral­ism: from Brus­sels to Bologna

Leave a comment!

Add your comment below, or trackback from your own site. You can also subscribe to these comments via RSS.

Be nice. Keep it clean. Stay on topic. No spam.

You can use these tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

This is a Gravatar-enabled weblog. To get your own globally-recognized-avatar, please register at Gravatar.