The Council of the EU’s Audiovisual and Media Working Party discussed the legal basis of the European Media Freedom Act (EMFA) on Monday 17 April, while the use of Article 114 of the TFEU on the internal market fails to satisfy (see EUROPE 13151/26).
The EU Council’s Legal Service has decided that Article 114 is justified, provided that it specifies how certain provisions, such as those relating to public media or media market concentrations, aim to improve the functioning of the internal market.
Public media
To invoke Article 114 of the TFEU, the legal act must meet three conditions: - national divergences undermine the functioning of the internal market; - the act has the explicit purpose of remedying it; - there is no other appropriate legal basis. The EMFA can therefore protect pluralism, as long as this is always done from an internal market perspective.
However, according to the Legal Service, the provisions on the independence of the public media do not meet these conditions as they stand.
On the one hand, it recognises that the lack of harmonisation of the financing of public media leads to distortions of competition (a publicly financed media that does not fulfil its public interest mission competes with private media). However, it notes that EMFA is not intended to correct this situation, but to avoid underfunding of public media.
On the other hand, the European Commission defends the need to legislate on the independence of public media to avoid interference, especially political interference. However, the Legal Service believes that it is necessary to clarify how these measures deal primarily with barriers to the single market.
Concentrations
Similar issues arise in the control of media concentrations. Indeed, the Commission considers that, given the role of the media in shaping public opinion, Member States should assess the impact of media concentration on pluralism or editorial independence.
The EU Council’s Legal Service points out that there is no evidence that the differences in legislation represent an obstacle to the free movement of media services or distort competition. It therefore calls for an explanation of the need to examine mergers in the media market in a harmonised manner, based on cases such as Vivendi’s takeover of Mediaset (see EUROPE 12552/25).
Print media
Furthermore, the Legal Service calls for clarification of how the fragmentation of print media legislation affects the EU internal market. In the current text, this analysis is mainly reserved for the audiovisual sector, whereas the EMFA affects all types of media.
According to the Legal Service, “it may, notably, be possible to argue that the dividing line between audiovisual and non-audiovisual media services is increasingly more difficult to draw” due to the development of online content.
Finally, the Legal Service believes that the EU can legislate on the media, provided that it does so within the framework of its competences (in this case, the single market) and with respect for cultural and linguistic diversity.
Analysis: https://aeur.eu/f/6ca (Original version in French by Hélène Seynaeve)