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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


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