1. European values and media pluralism
Láncos Petra Lea

2. 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.”

3. 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,

4. Structure European values
Problems of definition
Normativity
Enforcement possibilities
Values of democracy and pluralism in the media context
Convergence: EU – Council of Europe

5. 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.”

6. Function of EU values
Function:
Durability
Universality
Adaptability

7. 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

8. Normativity of EU values
principles (values) are binding like legal rules
Breach established through balancing
Breach results in sanction

9. 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

10. 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

11. 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”

12. 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

13. 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

14. 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

15. 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

16. 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

17. Values of democracy and pluralism in the media context
The 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. Quantitative requirements of pluralism
Starting point: Media pluralism presupposes a great number of sources
Familiapress case: protecting media pluralism may be a mandatory requirement

27. 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

28. Thank you for your kind attention!