The document discusses potential EU competencies and legal instruments regarding media pluralism and freedom. It finds that while the EU Treaties do not explicitly confer such competencies, provisions like Article 11 of the EU Charter and Article 10 of the ECHR establish these principles. It analyzes how various Treaty articles and directives could support pluralism and discusses establishing independent regulatory authorities or an EU agency to help monitor and set standards. In conclusion, while the EU has few direct tools now, greater clarity on competencies is needed given the importance of democratic principles like pluralism.

1. EUROPEAN UNION COMPETENCIES IN RESPECT
OF MEDIA PLURALISM AND MEDIA FREEDOM
Possible legal instruments to tackle media pluralism and
freedom
Elda Brogi, CMPF
29 October 2012, EUI, Villa la Fonte

2. State of the art (1)
-the Treaties do not confer an explicit competence
to the EU on “media pluralism and media freedom”
-but the EU has not been “neutral” on the issue of
media pluralism and media freedom
-the debate on EU competencies with regard to
media pluralism and media freedom is a long
debate which is still on-going.

3. State of the art (2)
-the 2012 strategy of Vice-President Neelie Kroes
to establish different policy and research groups,
namely, the Centre for Media Pluralism and Media
Freedom, the EU Futures Media Forum and the
High Level Group on Media Freedom and
Pluralism, to discuss and report on the state of the
debate and on what can be done.
- “bottom-up” initiatives on media pluralism

4. State of the art (3)
-media pluralism is a principle that can operate
and be implemented at various levels in the EU
order
-a list of potential instruments

5. Article 11 of the Charter and article 10 of the ECHR:
Media pluralism as a general principle of the EU order (1)
-Article 11, Paragraph 2 Charter explicitly states that: “The freedom
and pluralism of the media shall be respected”.
-art. 6 TEU says the Charter has same legal value as the Treaties
-the provisions of the Charter are not to extend the competences of
the Union as defined in the Treaties
-the Charter is addressed both to the EU institutions, bodies, offices,
agencies, with due regard to the subsidiarity principle, and to the
Member States when they are implementing EU law (art. 51)

6. Article 11 of the Charter and article 10 of the
ECHR: Media pluralism as a general principle of
THE EU order (2)
Article 52 (3) of the Charter affirms that:
“In so far as this Charter contains rights which
correspond to rights guaranteed by the
Convention for the Protection of Human Rights
and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those
laid down by the said Convention. This provision
shall not prevent Union law providing more
extensive protection.”

7. Article 11 of the Charter and article 10 of the ECHR:
Media pluralism as a general principle of the EU order
(3)
-Another bill of rights acknowledged by Article 6 TEU is the
Convention for the Protection of Human Rights: “The Union
shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms.”
-fundamental rights, as guaranteed by the ECHR and as they
result from the constitutional traditions common to the
Member States, are to constitute general principles of the law
of the European Union

8. Article 11 of the Charter and article 10 of the
ECHR: Media pluralism as a general principle of
THE EU order (4)
-Charter, ECHR and constitutional traditions of MS form a
normative corpus that has already had, and will potentially
have, a role in the interpretation and application of
European law.
-The two European Courts, the European Court of Justice
of the European Union and the European Court for Human
Rights, for instance, can play an important role in the
definition and in the application of common European
principles starting at “case level”.
-22 October 2009, Kabel Deutschland (before Lisbon)

9. ●Competition and cultural
aspects: Article 167.4 TFEU
- article 167.4 TFEU
(Bania's presentation)

10. ●Pluralism and internal market harmonisation:
ownership (1)
Article 26 TFEU – internal market
Article 114 TFEU – internal market harmonization
-The European Parliament and the Council shall ... 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
-the European Union can exercise its competences
whenever the proper functioning of the internal market is
negatively influenced by the existence and application of
diverging national provisions in any sector which is not
expressly excluded from the founding Treaties.

11. ●Pluralism and internal market harmonisation:
ownership (2)
-the main regulatory instrument that the Member States use to
protect media pluralism in the media market is legislation on media
ownership that usually prevents and sanctions the creation of a
dominant position in the market
-different parameters to define positions prejudicial to pluralism (the
number of channels controlled, resources, audience share, etc.,)
-All these differences can hamper the functioning of the internal
market: their 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 (see European Citizen
initiative)
-the same applies for media ownership transparency

12. ●Pluralism and internal market harmonisation:
ownership (3)
-legal basis: Arts. 26, 50 and 114 of the Treaty on
the Functioning of the European Union
-in shaping these new provisions, the Union is
required to uphold the highest level of 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

13. The implementation of AVMS and the role of
●
NRAs (1)
AVMSD does not foresee the establishment of
relevant independent National Regulatory
Authorities (NRAs).
-comparison with the Electronic Communications
Regulatory Framework, which regulates issues
which are closely related to those in the AVMS
Directive: all relevant national regulatory authorities
are requested to comply with independence
requirements.

14. The implementation of AVMS and the role of
●
NRAs (2)
--The AVMS Directive does not introduce any specific
obligation for the Member States nor does it provide
any element about the structure, functioning or role of
those national bodies or about the relationship among
them.
-in an era of convergence, it could be reasonable to
consider the establishment of the same institutional
requirements both for electronic communications and
AVMS

15. ●The European Agency on Human Rights (or
another qualified body) soft law standard-
setting and monitoring
-another potential European level of intervention on pluralism
could be through the Fundamental Rights Agency (FRA)
-another qualified body, which should be mandated to monitor
Member States and propose common standards, basing its work
on the ample case law of the the European Court of Human
Rights and the European Convention.

16. Conclusions
-EU competences with regard to media pluralism
appear scattered in the European legal landscape.
-the European Union has few hard and soft law
instruments to promote and assure media
pluralism and freedom in Europe
-given the paramount importance of the
democratic principles to be promoted, greater
clarity and certainty is needed with regard to EU
competences