EUROPEAN VALUES AND MEDIA PLURALISM

Láncos Petra Lea

Antecedents• Act CLXXXV of 2010 on Media Services and Mass Media

• Widespread criticism• EU, Council of Europe, OSCE• Infringement of principles: democracy, pluralism, HRs

• OSCE: „The new institutitional framework may (…) create (…) a scenario in the current term of Parliament, in defiance of the principle of the division of powers and of the checks and balances typical of liberal democracy.” • http://www.osce.org/fom/71218?download=true

Criticisms directed against the Hungarian Media Law• „Whereas criticism of a number of provisions of Hungarian

media legislation has been voiced by Parliament and the Commission, the OSCE Representative on Freedom of the Media and the Council of Europe Commissioner for Human Rights, as well as by the Secretary General of the Council of Europe, the UN Special Rapporteur on the promotion of right to freedom of opinion and expression(…)”

• Tavares report, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2013-0229+0+DOC+PDF+V0//EN

Structure• European values

• Problems of definition• Normativity• Enforcement possibilities

• Values of democracy and pluralism in the media context• Convergence: EU – Council of Europe

European values - principles under cover?

• EU = system of multi-level governance resulting in a European constitutional space based on principles (ex Art 6 TEU)

• Lisbon renamed principles to be values• →Normativity of values = principles• Art 2 TEU: „The Union is founded on the values of respect

for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

Function of EU values• Function:

• Durability

• Universality

• Adaptability

Function of values (principles)• Durability:

• Principles (values) are there to last• Autonomy of values vis-á-vis politics

• Universality:• Basis for interpreting primary law and secondary law ← values

permeate all legal relationships

• Adaptability:• Conceptual opennes: open and general formulation of principles allows

for - all Member States to identify with them

- adaptation to dynamically evolving social, political and economic environment

Normativity of EU values

• Normativity: • principles (values) are binding like legal rules• Breach established through balancing• Breach results in sanction

European values as a minimum of public policy

• Art 2 TEU binds Member States in both • Implementing EU law• Regulating and implementing national law

• von Bogdandy et al: Art 2 TEU „prescribes the common standards of (…) human rights and democracy, and does so in respect of all supreme powers exercised in the European area, whether by the Union or the member states. In this sense Art 2 (…) lays down an element of public policy for the member states.”

• Pernice: Art 2 TEU creates a „minimum of constitutional homogeneity”, limiting the constitutional autonomy of member states

Mixed nature of Art 2 TEU values• Complex nature of Art 2

• Values that correspond to Charter (CFR) rights (dignity, non-discrimination)

• Horizontal values (freedom)• Basic principles (democracy, rule of law)

→ certain values may are enforceable human rights (CFR), while others are „constitutional principles”

→ problems of determinability and enforceability of values

Enforcing European values• Values corresponding to CFR rights/”constitutional

principles”• → Judicial route

• Individual enforcement: Member state courts• Infringement proceedings: Court of Justice of the European Union

(CJEU)

• → Political route• Art 7 proceedings• The „new EU framework to strenghten the rule of law”

Judicial route – Individual enforcement

• Before MS court – HRs violation• „Reverse Solange doctrine”

• Art 2 TEU rest on presumption that MSs guarantee the substance of HRs (subject to constitution, ECHR)  

• 1) refute presumption • 2) demonstrate serious HR violation

• Failing to execute ECHR judgment, intimidating judges, etc.

• Basis for claim: Art 20 TFEU + Art 2 TEU• Zambrano case: „ genuine enjoyment of the substance of the rights conferred by

virtue of their status as citizens of the Union”.• (+ MS court: reference for a preliminary ruling)

• Critique: • questionable whether MS courts or CJEU would assume jurisdiction• Would lead to divergent interpretations on Art 2 violations if MS court fails to refer to CJEU

Judicial route – Infringement proceedings

• Infringement proceedings against MS breaching Art 2 TEU

• No such judgments to date• Commission refuses to sue on the basis of Art 2 TEU

• Critique:• Treaty does not exclude Art 2 TEU from the jurisdiction of the

CJEU• Lack of Art 2 judgments leads to uncertainty as to the content, level

of protection and requirements towards MSs enshrined in Union values

Political route – Art 7 TEU procedure• Art 7 TEU – political sanctions in case of “serious and

persistent” breach of Art 2 TEU values• Serious and persistent breach according to Commission: breach of

UN Charter or Statute or CoE• Systemic problem: actual risk of breach – embodied in legislation • Proof: if several international organizations have condemned the

MS for such breach

• Critique:• Never used – political nuclear bomb• MS do not expect it to be used and carry on with breach

Political route:The „new EU framework to strenghten the rule of law”

• Preventive measure for breaches of Art 2 TEU• Preceeding and complementing the Art 7 procedure• Art 2 TEU: rule of law based on

• The principle of legality, democracy and pluralism, legal certainty, respect for HRs and equality before the law

• New Framework – in case of systemic problems related to the political, legal or institutional system of a MS where MS guarantees are insufficient to provide a remedy

Political route:The „new EU framework to strenghten the rule of law”

• 3 step procedure:• Commission evaluates the situation – in dialogue with MS

(confidential)• Commission makes proposals – deadline (public)• Commission reviews implementation of proposals – considers

launching Art 7 procedure

• MS bound by principle of loyal cooperation

• Critique:• An additional instrument preceeding Art 7 procedure – efficiency?• No authentic interpretation of Art 2 TEU as a result• Way forward: better use of infringement proceedings and Art 7

procedure

Values of democracy and pluralism in the media contextThe similar criticisms articulated by Union and CoE officials refer to the convergence of European values of democracy and pluralism

Goal: evaluate democracy and pluralism in the media context on the basis of Union and CoE documents and legislation

Democracy – in the EU• Initially democratic legitimacy supplied by MSs• Competences transfered to Brussels• → Need for abolishing EU democracy deficit• → „dual legitimacy”: Council/EP as co-legislators• Art 10 TEU: Union is based on representative democracy• Art 11 TEU: public consultation, ECI

• ← EU notion of democracy inspired by national solutions

Democracy• MS democracy indispensable for Union democracy

• Lack of freedom of the press would endanger EU democracy for lack of information sources fo form opinion

EU linguistic diversity – discrepancies:• → no EU public sphere • → national media service providers are key in enforcing

information rights• ← EP elections and EU topics thematized by national media

Democracy – Council of Europe• CoE PA 1636 (2008) resolution (indicators for media in a

democracy): „Freedom of expression and information in the media is an essential requirement of democracy. Public participation in the democratic decision-making process requires that the public is well informed and has the possibility of freely discussing different opinions.”

• → MSs as a community must monitor state of democracy in the other MSs

• Rec No. R (99) 15 of the Committee of Ministers to Member States on Measures Concerning Media Coverage of Election Campaigns

• Rec CM/Rec(2007)15 of the Committee of Ministers to member states on measures concerning media coverage of election campaigns

Democracy - summary

• Overlaps in the notion and significance of democracy in the approach of the Union and CoE

→ Media plays a key role in creating and sustaining a viable democracy

→ media freedom guarantees democratic participation of citizens

→ Democracy and freedom of media mutually reinforce each other as values

Pluralism

European Union• Media pluralism as a value (Art 11 ChFR)• Inverventionist approach to media policy:• → Pluralism = as a restriction to the freedom of speech• → Restriction of pluralism = proportionality in the internal

market

• Approaches – Intervention points:• Structural• Quantitative• Qualitative

Structural requirements of pluralism• Starting point: the plurality (diversity) of media sources is

a precondition for diversity of content• Concentration

• Preventing excessive concentration on the media market

• Transparency• Concentration can be assessed on the basis of the ownership of

media service providers

Structural requirements of pluralism 1

Union• EU competition policy – mergers, abuse of dominant

position• National media markets exhibit different structures and

characteristics • ← linguistic fragmentation • ← intervention must be tailor-made to national media markets• ← national authorities must have some room for manoeuvre• Gouda case

CoE PA Res 636 (2008): MS should take action against media monopolies and dominant positions

Structural requirements of pluralism 2• Transparency• Of the ownership of media service providers• → authority: to assess the degree of media concentration• → consumer: to assess how „independent” media content is

• EU: AVMS Directive Art 5

• CoE CM Rec a on protecting the role of the media in democracy in the context of media concentration:

• → MSs guarantee the transparancy of media ownership• → in particular if owner is a party/politician

Quantitative requirements of pluralism

• Starting point: Media pluralism presupposes a great number of sources

• Familiapress case: protecting media pluralism may be a mandatory requirement

Qualitative requirements of pluralism• Starting point: media pluralism presupposes diverse

media contents• Uncertain factor – difficult to asses!• United Pan-Europe Communications Belgium SA case

• Cultural policy may be a mandatory requirement restricting the freedom to provide services

Thank you for your kind attention!