Media in Europe: Subsidiarity should be reconsidered

The Hungarian media law symbolises the need for the European Union to assume its responsibilities to defend media freedom. Interpretations of this law diverge, however. In Hungary, it is seen as the straw that broke the camel’s back, coming on top of a series of laws aiming to strengthen the current government’s powers. In Europe, following the Italian, Romanian and Bulgarian cases, it has become a symbol of debate on a European media law.

The question of whether an EU directive is necessary and would be more effective is a valid one. What added value would a directive contribute? And, most importantly, considering cultural, linguistic and legal differences is it conceivable?

As the recent cases show, the Commission’s approach of legislating in the field of the media in order to complete the single market does not constitute an absolute guarantee. There is no direct correlation between a larger number of players on the market, greater competition and greater media independence. Despite this approach, and despite the fact that the laws comply with EU legislation, the Hungarian law still includes ambiguous articles with respect to the appointment of officials and media control. Concentration problems are not always solved satisfactorily in Italy and a homogenising effect can be seen in the programmes of private and public channels. The purpose of an EU regulation would not be to impose detailed rules like those at national level. However, as the cases mentioned above suggest, national legislation no longer suffices.

It fails to offer adequate guarantees in an increasingly interconnected world. Consequently, a European media framework law determining the bases and guiding principles for the functioning of this sector seems essential to effective protection of media freedom.

Article 5 of the Treaty on the European Union, the ‘subsidiarity principle’, is often evoked as a ground to object to a media law. Existing legislation is nevertheless inconsistent, does not cover all aspects and shows a number of major weaknesses.

Media freedom is an essential foundation of our democracies, however, since it enables us to take informed decisions during local, national and European elections. So there is a European dimension that calls into question the principle of subsidiarity. Furthermore, based on Articles 2 and 6 of the Treaty on European Union, a policy in support of media freedom could be seen as a sort of implicit competence.

In spite of the entry into force of the Lisbon Treaty, which includes the European Union’s Charter of Fundamental Rights, the Commission still does not have the capacity to act in cases of violations of human rights in general. However, it seems that the current Commission does not intend in any case to evoke more fundamental human rights principles in this connection, but on the contrary to keep to the technical aspects, as seen in the criticisms Neelie Kroes sent to the Hungarian government. More positively, the joint resolution tabled in the European Parliament by members of the S&D, ALDE and Greens-EFA groups constitutes a more courageous approach.

Will the situation change once the European Union becomes a party to the European Convention on Human Rights (ECHR)? It is still hard to say whether this change will have additional effects that could convince the Commission to adopt a more explicit approach to these problems and similar questions.

The Foundation for European Progressive Studies (FEPS) and its legal experts will work to advance a progressive European approach to the media, based on respect for democratic values and fundamental rights, and will propose progressive alternatives aimed at more coherent and effective European media legislation.