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The Standards of the Council of Europe and

an overview of the case law of the ECJ

Prof. Roberto Mastroianni

EUI Centre for Media Pluralism and Media FreedomsPolicy Conference, October 29th, 2012

European Union Competencies in Respect of Media Pluralism and Media Freedom

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Freedom of Expression in International and European Law

• Freedom of expression, the free flow of information, and freedom and pluralism of the media as fundamental human rights :

– In international documents: the Universal Declaration of Human Rights (UDHR, 1948, Article 19) and the International Covenant on Civil and Political Rights (ICCPR, 1966, Article 19).

– In Europe: Article 10 of the European Convention on Human Rights (ECHR, 1950). The European Union Charter of Fundamental Rights (2000). The Charter is the only instrument to make explicit reference to media pluralism.

European Standards and EU Competencies

• The importance of the general standards in the definition of EU Competencies in the field of Media Pluralism

• Once the “legal basis” is established according to the Treaties provisions, ensure compliance with:

– the general principles governing the exercise of EU competencies (subsidiarity and proportionality);

– the constitutional implications of the media sector: fundamental principles as codified in arts. 2 and 6 TEU, in particular respect for human rights as guaranteed by the EU Charter of Fundamental Rights -art. 11), the ECHR and the constitutional traditions common to the Member States.

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European Standards and EU Competencies

• Reference to the ECHR as a source of interpretation of the EU Charter provisions (art. 52, par. 3).

• The European standards mandatory for EU legislation are those enshrined in the ECHR as interpreted by the Strasbourg Court.

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The Council of Europe as the elective forum

• The Council of Europe is the elective forum in terms of protection of fundamental rights in the European continent.

• The ECJ, as well as many national constitutional courts, have increasingly relied upon rulings by the Strasbourg court and have made several references to the text of the ECHR as interpreted and applied in its own context.

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The Strasbourg Court’s approach

• Evolutionary interpretation of Article 10 ECHR so as to highlight the importance of the right of everyone to receiveinformation in a pluralist context not influenced by the presence of dominant positions.

• The Court accepted the principle, framed in terms of a constitutional tradition common to European countries, that the general rules of competition law cannot act as an effective barrier against the creation of dominant positions in the markets of mass communications.

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The Strasbourg Court’s approach

• Legitimacy of ex ante intervention (public authorities interference) in the freedom to inform:

– structural limits to the access to the media through a licensing system, and

– restrictions on media ownership, if necessary to protect the “right of others” (Article 10, para 2), namely that of citizens to a pluralistic range of information as well as of that of other (existing or potential) broadcasters (so called external or structuralpluralism).

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The Strasbourg Court’s approach: the Centro Europa 7 judgment

• In Centro Europa 7 (7 June 2012), the European Court of Human Rights recapitulated the general principles established in its case-law concerning pluralism in the audiovisual media, also taking into account the text of various Resolutions and Recommendations adopted by the political bodies of the Council of Europe.

– The Court stressed the fundamental role of freedom of expression in a democratic society, in particular where, through mass media, it serves to impart information and ideas of general interest, which the public is moreover entitled to receive;

– It also underlined that such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor. As a basic principle, there could be no democracy without pluralism;

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The Strasbourg Court’s approach: the Centro Europa 7 judgment

• A position of dominance would undermine freedom of expression and freedom to impart and receive information.

• It could lead to a situation where one group exercised pressure on broadcasters and eventually curtailed their editorial freedom.

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The Strasbourg Court’s approach: the Centro Europa 7 judgment

• In addition to its “traditional” duty of non interference, a modern reading of Article 10 brings to the conclusion that the State has a POSITIVE OBLIGATION to put in place an appropriate legislative and administrative framework to guarantee effective pluralism.

• Providers need to have effective access to the market so as to guarantee diversity of the overall programme content, reflecting as far as possible the different opinions in society.

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Other Council of Europe legal texts• Other documents (most of them not binding per se) are more

detailed on the proposed, concrete measures:1 - European Convention on Transfrontier Television. 2 - Committee of Ministers Recommendations – no. R (99) 1, on measures to promote media pluralism– no. R (2003) 9 on measures to promote the democratic and social

contribution of digital broadcasting, – no. R (2007) 2 of the Committee of Ministers to member states on

media pluralism and diversity of media content,– no. R (2011) 7 of the Committee of Ministers to Member States on a

new notion of media

3 – Parliamentary Assembly resolutions– Resolution 1638 (2008) – Indicators for media in a democracy

4 - Commissioner for Human Rights Reports and Discussion papers

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The Luxembourg Court’s approach

• According to general principles, in the EU legal order the principle of media pluralism: – Is a parameter for the legitimacy of EU rules as well as

national legislation adopted in the scope of application of EU law;

– is the main interpretative point of reference in the concrete application of both categories of rules;

– is a cultural policy objective that can be considered as an “imperative reason of public interest” capable of justifying national measures restricting the internal market freedoms, provided that such measures are proportional and do not go beyond what is necessary to achieve the objective pursued (See inter alia judgments of 25 July 1991, Gouda; 22 October 2009, Kabel Deutschland, 16 December 2008, Michaniki)

The Luxembourg Court

• In conclusion, the application of different national measures may give rise to obstacles to the internal market freedoms which may be justified according to EU law and can be removed by an EU legislative intervention of harmonisation of national measures.

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To Sum up: European standards

– Media pluralism. European standards require that States must guarantee the right of individuals and the public at large to have access to a pluralistic media sector, especially in broadcasting.

– Diversity of ownership. States should ensure that a sufficient variety of outlets and perspectives, provided by a range of different owners, is available to the public.

– Freedom from political control. Allowing members of the Government or of the Parliament as well as government officials to control significant segments of the national broadcasting sector is incompatible with current European notions of freedom of expression.

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To Sum up: European standards

– Competition law alone may not sufficient to protect basic

values which are decisive for democracy’s public discourse

(Council of Europe, Commissioner of Human Rights, December 2011). General ban on the very existence of “dominant positions” in the broadcast media market (not just the “abuse”, as established in EU general competition rules)

– Securing the Independence of Regulators - the rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests

– Importance of Public Service Broadcasting – A Visible place should be reserved to public service media in the new media landscape

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Conclusions

• The case-law approach has intrinsic limitations, while the challenges posed by media pluralism imperatives in both old and new media require a legislative solution.

• A new EU directive for the approximation of national laws or a Council of Europe Convention on trans-national media concentrations (or both, following the example of the “television without frontiers” approach in the eighties) could be the next steps for a more profound and efficient protection of media pluralism in Europe.

• Citizen initiative as a substitute of the European Commission’s inactivity?

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My favourite slide

• Thanks for your attention!

roberto.mastroianni@unina.it