The Czech Presidency of the Council of the EU has outlined the position of several EU Member States on the transparency and targeting of political advertising in a document dated 30 September (see EUROPE 13015/19).
Discussions will still need to be held on the matter of sanctions that Member States can issue in the event of non-compliance with the regulation.
France believes that the power to establish rules on sanctions - including administrative fines and financial penalties applicable to political-advertising service providers under their jurisdiction - should be left to Member States. This power would also apply to the rules on sanctions for sponsors in the event of infringement.
In addition, France proposes capping the maximum fine that could be imposed at 4% of the annual revenue or worldwide turnover of the sanctioned entity.
As such, Member States would have to take into account several criteria for issuing a sanction, such as the nature, gravity and duration of the infringement, the intentional or negligent character, the measures taken to mitigate the damage and the liabilities of the entity subject to a sanction. In addition, the degree of cooperation with the competent authority, the size and the economic capacity of the political-advertising service provider should also be taken into account.
For Hungary, however, the definitions “still lack some clarity” and it is impossible to define at this stage what is to be considered political advertising. As a result, it would be complex, in Hungary’s view, to consider whether the responsibility and the sanctions derived from it are political in nature. “The regulation would go beyond its original purpose and have the potential for disproportionate restriction on the freedom of expression”, the delegation concluded.
For Lithuania, the ‘possible exceptions’ part of the sanctions issue also needs to be addressed. The text indeed includes the explicit exclusion of the applicability of sanctions to service providers, if the sponsor provided false information that was not manifestly erroneous. While Lithuania is of the view that it could support such a provision, it warns against potentially “unfair agreements between sponsors and service providers”.
For other Member States, such as Denmark, the issue of sanctions is impeded at a completely different level. Indeed, the Scandinavian country stresses that “Danish administrative authorities cannot, with binding effect, impose fines”. “It is highly likely that Danish courts – ultimately the Supreme Court – would strike down such fines as unconstitutional”, Denmark concludes.
See the document: https://aeur.eu/f/3f4 (Original version in French by Thomas Mangin)