Category: Events

For over a year now, the Meijers Committee and Democracy Reporting International (DRI) have been helping politicians, journalists, and other actors navigate the tangled web of myths, lies, and half-truths surrounding the rule of law debates in Europe.

This is the purpose of our Rule of Law FAQs, a handy set of cards that help readers separate fact from myth and debunk the narratives constructed by those who muddy the waters of the European rule of law debates. We are now expanding the cards with updated information, covering more member states, adding new cards on European-wide issues, and offering them in more languages.

What’s new?

• Updates of the previous cards with the latest information on the legal stand-off between the European institutions and member states Poland and Hungary over their rule of law crisis.
• Expanded member state coverage, with cards about rule of law issues in Spain, Romania, and Greece.
• New cross-cutting issues:
  • The war in Ukraine – sanctions on individuals and the rule of law implications  
  • Media pluralism
  • Secret surveillance/spyware and the rule of law crisis

Download the RoL FAQs 2.0 here

See also translated versions in German, French, Polish, Hungarian, Spanish, Greek and Romanian. 

Introduction

The Meijers Committee and the Amsterdam Centre for European Law and Governance (ACELG) of the University of Amsterdam (UvA) organized on 11 July an online seminar on the enforcement of the European Media Freedom Act (EMFA).

Media pluralism reveals a complex puzzle in the EU’s legal order. While media pluralism features among the most important values of the EU, the Union lacks an explicit competence to regulate the media and media as a field of EU policy is absent from the Treaties.

In September 2022, the European Commission proposed the European Media Freedom Act (EMFA) to promote media freedom and pluralism. The initiative seeks to address contemporary practices which threaten the economic and democratic function of media in the EU. The proposal also contains several enforcement mechanisms. It is, however, highly questionable whether these mechanisms improve the effectiveness and credibility of enforcement of media law and policy in the EU.

This online seminar brought together policymakers, academics, and members of the EP to discuss the question how the EMFA and media law and policy could be better enforced across the EU. The participants drew on expertise from both media law and EU competition law that can offer tools or examples to safeguard media pluralism in the EU.[1]

Panelist contributions

Daniel Freund (MEP Greens) emphasized the importance of protecting journalism and journalists which comes with the rule of law backsliding in EU Member States. He mentioned that the EP is closely following developments that could undermine media pluralism in the EU, such as the abuse of spyware and attacks on independent news media and journalists. Noteworthy are several EP measures which aim to safeguard media pluralism, such as the PEGA report (investigating abuse of spyware (against journalists)).

Developments like state capture of media in some Member States threaten European interests of democracy and rule of law. With the EMFA proposal, the European Commission has exactly tried to accommodate these growing concerns. LIBE and CULT committees will soon vote on the EMFA.

According to Freund, the EC should go further to address the situation in Hungary. On top of the option to launch an infringement procedure, the Commission should use the available competition law tools. But how to address the concerns by States with more pluralist and free media who feel threatened by these strong tools? In general, what tool is to be used in each circumstance is contingent on the severity of the threat to media pluralism in the Member State at hand. Freund stressed that it is about finding the right safeguards.

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Dr. Konstantina Bania (Geradin Partners and Brunel Uni) started with explaining the symbiotic relation between RoL and media pluralism: on the one hand, public powers act to protect media pluralism (see EU RoL definition), but on the other hand, pluralistic media should hold authorities to account (see examples in EC RoL reporting).

She noted that EC RoL reporting is not the only tool at the disposal of the EC to protect media pluralism.

Media pluralism is a very complex issue (complexity is reflected by multi-dimensional nature of media pluralism: supply diversity, content diversity, exposure diversity) in which the EU has significant limitations to regulate. Yet, she emphasized the importance of the cross-sectional clause in Treaty (art 167(4) TFEU) which stipulates that the EU should consider cultural diversity, incl. media, when implementing other Union policies (such as internal market and competition policies)

But how can competition law enforcement consider media pluralism? In the field of anti-trust and merger control, Bania observed that EC has been focusing on prices. But in media market, price is not most important parameter of competition, if at all (as much media we consume is for free…) Bania regretted that the EC refrains from discussing other important factors such as quality, originality, and variety, which happen to be very important in the media market and for media pluralism. Also, in the field of state aid control, Bania believed that the EU had potential to do more. As one example, she posed the rhetorical question whether public broadcasters shouldn’t be independent from the government.

Bania discussed the specific acts to safeguard media pluralism before turning to EMFA, such as the DMA and DSA, in which she sees possibilities to level the media market and hence media pluralism. She believed the EMFA is a notable initiative, as it also tries to level the playing field and it tries to regulate across the board: governments, but e.g., also obligations for platforms.

Bania then focused on two intertwined issues: (a) whether the EMFA is in the position to address the regulatory asymmetries between platforms and the rest, (b) whether the EMFA can indeed apply “without prejudice” to the rules that have recently been adopted to regulate the platform economy. In that respect, she made a few comments on the DMA, the P2B Regulation, and national prominence rules. Her main argument here was that if we try to reform the framework to inter alia make platforms (and others) more accountable to users, we need to ensure that tensions with other regulations are avoided to prevent clash (and perhaps pre-emption).

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After Bania’s more substantive comments, Dr. Judit Bayer (Uni Münster) and Dr. Kati Cseres (UvA) delved into the actual enforcement of the EMFA and more generally how media law and policy could be strengthened across the EU. Specifically, they talked about how to improve the enforcement of the EMFA and more generally media law and policy, and what role competition authorities could play in this.

They started their presentation by stating that media pluralism is threatened by media capture (in illiberal member states) but also new media environment dominated by platforms (the latter also creates problems in liberal member states). This creates additional regulatory challenges. They noted that there are many different stakeholders involved and their relationship seems to be characterized by mutual distrust. Media owners mostly don’t trust the State, while media owners in some Member States have indeed very close (and unhealthy) relationships with politicians and big investors. Generally, all stakeholders distrust the EC because of its supranational sanctioning powers which could intervene with national media governance. It leads to a chaotic situation where the enforcement of media law is difficult.

According to Bayer and Cseres, the proposed enforcement framework in the EMFA however does not change much. The EMFA merely establishes friendly cooperation, rather than actual enforcement structured around the role and tasks of national regulatory authorities (NRA). It therefore does not really improve the effectiveness and credibility of media law and policy in the EU. This is particularly the case in situations of systemic non-compliance by national regulatory authorities or Member States (e.g., in Hungary).

Bayer and Cseres recommended an alternative way of how the EMFA is to be shaped. Their governance framework should create a transparent enforcement mechanism in which the different stakeholders control each other, like a system of checks and balances. Their framework should contain three essential elements: a) all decisions of the Board and Commission should be supported by a wider consensus of experts and stakeholders; b) post-merger assessment of media concentrations c) the Board’s opinion can ultimately trigger an extraordinary market investigation by the Commission which may lead to an infringement procedure within a specific deadline after a defined process of dialogue. They stressed that this recommended framework could address the systematic non-compliance by Member States and create stronger ties between the stakeholders.

Finally, Bayer and Cseres explained how the role of competition authorities, “with court-like functions” could be reconsidered in dispersing economic concentration, defending media pluralism, and enforcing the EMFA. Besides their role in safeguarding undistorted competition within the internal market, Bayer and Cseres mentioned that these competition authorities also defend effective judicial protection (Article 19 of the Charter of Fundamental Rights (CFR)) relevant to both defendants and victims in the competition context. Moreover, Bayer and Cseres highlighted recent EU case law, in which Article 2 values applied to the enforcement by competition authorities. In these decisions, the Courts emphasized the relevance of mutual trust and sincere cooperation in cases when competition authorities must cooperate with other administrative authorities responsible for other regulatory fields.

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Attendees

30 people have attended the online seminar, with different backgrounds ranging from EU and Member States officials to lawyers, academics, media, journalists, and civil society.

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Amsterdam, 18 July 2023

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[1] NB: the search for alternative pathways to enhance media freedom in the EU is in line with the Meijers Committee’s earlier work on media pluralism. In our comment CM2113, we assessed amongst others avenues in which media freedom intersects with free and fair elections (note also CM2302), state aid and public broadcasting, state advertising as state aid, and specific services sectors.

On 16-17 March 2023, the Our Rule of Law Academy took place in Brussels, a project for-students-by-students. It was a bootcamp for 45 selected bachelor law students from 25 Member States about the question “how to safeguard the rule of law in the EU yourself?”.

In the weeks before the pitch in Brussels, the participants attended online plenary lectures and worked with inspirational mentors in small groups on important rule of law topics with the aim to draft concrete policy briefs. The covered topics were: the protection of NGOs; academic freedom; media freedom; legal methods to protect the rule of law; political methods to protect the rule of law; political methods to protect the rule of law; European political parties and political groups; protection of the EU budget and recovery funds; non-implementation of ECtHR and CJEU judgments; Amicus Curiae at the CJEU; and judicial independence.

In Brussels the students were given the opportunity to present their proposals to EU decision-makers and others, and to receive constructive feedback from experts to sharpen their ideas. The program also included inspiring speeches by the President of the European Court of Human Rights, European Commissioners Vera Jourova and Didier Reynders, MEP Daniel Freund, former Advocate-General Eleanor Sharpston, Vice-President Jourova Deputy Chief of Cabinet Simona Constantin, Free Courts co-founder Michał Wawrykiewicz, the Dutch Ambassador Robert de Groot, and first and foremost the four founding bachelor students of Our Rule of Law – Elene Amiranashvili, Tekla Emborg, Zuzanna Uba and Anna Walczak of the University of Groningen.

The unique end result of the Our Rule of Law Academy, a report created by 45 Ba students from all over Europe, can be found here: https://ourruleoflaw.eu/academy-report.

The project was sponsored and supported by Meijers Committee. Other sponsors and partners were Radboud University Nijmegen, Maastricht University Campus Brussels, The Good Lobby (Profs), and the Permanent Representation of the Netherlands to the EU.

Introduction

The Meijers Committee organized a Conference on Media Freedom and Pluralism in EU law on 11 October 2022 in Brussels, as a response to the brand new proposal for the European Media Freedom Act (EMFA) and based on our recent report on media pluralism.

To generate a discussion, the Conference contained two panels, focusing on the extent to which the existing avenues for EU legal action provide sufficient protection to media freedom and pluralism in the Member States, and whether the recently proposed European Media Freedom Act (EMFA) has the potential to cater to the identified issues. Our distinguished panelists were Ramona Strugariu (MEP RENEW), Prof. Elda Brogi (EUI), Maria Luisa Stasi (ARTICLE 19), Maciej Styczen (European Commission, DG CNECT), Prof. Tarlach McGonagle (University of Amsterdam; Leiden), and Oliver Money-Kyrle (International Press Institute).

First panel: Existing legal instruments

The first panel discussed what the EU has been doing to protect media freedom and pluralism. Both Ramona Strugariu and Elda Brogi noted there are several constitutional mentions of media freedom in the EU legal framework. They also pointed to several non-binding recommendations by the EC and CoE, and to various monitoring mechanisms, which could be relevant to safeguard media freedom and pluralism.

In general, Strugariu thinks there are too little legal instruments for protection against harassment of journalists and media. She contended that most of the provisions in the new draft act only look at media from market point of view. What should be included is impact on core values of fundamental rights, rule of law and democracy. She concluded by stressing that we should make use of the current political will to push these salient points.

Elda Brogi also welcomed the current political will to have a discussion on media pluralism, which has resulted in the draft act. She stressed the scattered competences for the EU to deal with media freedom and pluralism, but notes ways to move forward using these different legal bases.

The fragmentation in the law governing media is also the starting point for Maria Luisa Stasi. She identified that media often involves a balancing-exercise, but sometimes rules or underlying goals conflict: oftentimes competition goals prevail over media objectives. Stasi pleads to stop thinking in silos. According to her, we should start thinking about how different frameworks can be applied and create synergies to achieve more than one goal at the time. This may be one of the promising aspects of the proposed EMFA.

Second panel: EMFA

The potential of the proposal for the EMFA regulation was central in the second panel. How can it help to safeguard media freedom and pluralism? Maciej Styczen introduced the draft act, stressing that the proposal for the new Act should be seen as a response to the problems in the media sector. Based on Art 114 TFEU, the goal the EMFA is to safeguard the integrity of the internal market for media services. Styczen expected this will ensure legal certainty for media service providers and recipients, enhance quality of media services, and increase the level playing field among media players. He furthermore gave an overview of the key headlines of the proposal, discussing both the draft regulation and the recommendation.

After Styczen, Tarlach McGonagle discussed the EMFA from a human rights perspective. As the draft act is a set of rules is operating pursuant to logic of internal market, McGonagle raised the question whether this logic would allow for the improvement of fundamental rights aspects. He agreed with the other panelists that the media sector is a complex European environment, where information, media, and human rights come together. It is also a shared space, as both the EU and CoE have competences in this field. According to McGonagle, media freedom is about three components: (i) safety and security for all media actors; (ii) pluralism and independence of actors; (iii) quality and ethics informing public debate. McGonagle proposed a solution to the problems faced: to create a favorable environment for media freedom. Like Stasi, McGonagle pleaded for a holistic approach of media which involves multiple actors and objectives.

The final speaker of the second panel, Oliver Money-Kyrle, spoke about the problem of media capture in EU Member States. Money-Kyrle said that the use/abuse of government economic powers to gain control over the States media means in practice that private media is being taken over, the placement of political allies in regulatory bodies, the abuse of state advertising funds, the creation of a hostile economic environment to independent media, the provision of favorable bank loans to closely allied oligarchs, and the introduction of laws to ban broadcasters. The question is whether the new EMFA could provide for some tools to address media capture. Money-Kyrle acknowledged the ambition on the side of the EC, but he also identified significant loopholes, relating to ownership transparency, misuse of state advertising, reception of state contracts, and independence of national regulators.

Attendees

Over 70 people have attended the hybrid Conference, with different backgrounds ranging from EU and Member States officials to lawyers, academics, media, journalists, and civil society.

Jasper van Berckel Smit

Brussels, 11 October 2022.

Find the recordings of the Conference here:

On Friday 24 June 2022, prof. dr. John Morijn gave his inaugural lecture on the acceptance of the post of endowed professor of Law and politics in international relations at the University of Groningen Faculty of Law.

The topic of the lecture was the law and politics of protecting liberal democracy. John Morijn first identified the current challenges to liberal democracy in Europe. He then discussed the law and its potential to protect liberal democracy. Lastly, he reflected on the politics necessary to place law in its social context.

John Morijn presented three main arguments:

(i) “The problem of deterioration of liberal democracy in EU Member States and, as a result, political EU institutions themselves, is much deeper and much more urgent than commonly understood. Opponents of liberal democracy in Europe have a clear gameplan. Its defenders do not – at least not yet.”

(ii) “Existing binding norms and procedures offer many more possibilities to protect liberal democracy than currently used. The challenge is to employ only those tools that are effective to confront the specific challenge we face, and to enforce their outcomes more effectively – particularly ECJ judgments.”

(iii) “We need more, not less politics to protect liberal democracy. But we cannot sit back and leave politics to politicians alone. Instead, we need more conscious and coordinated action from all of us, everyone in this room. Lawyers – legal academics, attorneys, legal advisers to governments and EU institutions – and national and EU-level politicians have an additional role and responsibility.”

The full text of the lecture can be found here

A number of politicians in Europe, notably from government parties in Poland and Hungary, are challenging established conceptions around the rule of law – the framework guaranteeing accountable governments and equal citizens’ rights. They pretend that the rule of law is a mere buzzword and claim that it is a political tool used to target them and their political agendas without justification. These claims are packed with myths, lies and half-truths that hinder constructive debates around the rule of law in the EU.

To help politicians, journalists, and any other actors involved in the rule of law debate navigate these muddy waters, Democracy Reporting International (DRI) and Meijers Committee paired up to create the Rule of Law FAQs. These handy cards will help you get your facts straight and be ready to bust the myths that have been built around the rule of law.

The set is available in English, German, French, Hungarian and Polish. To explore the English version, click on the image below. You can also find all language versions for download at the bottom of this page.

On Friday 5 March, we organised a seminar about the rule of law and invited three amazing speakers to talk about possible lessons for the future and the discussion was led by our member John Morijn. Márta Pardavi (co-chair of the ​Hungarian Helsinki Committee) talked about the situation in Hungary and what she sees as avenues that organisations such as the Meijers Committee can take to tackle this issue efficiently. Anna Wójcik (researcher at the Institute of Legal Studies of the Polish Academy of Sciences, co-founder of ​ruleoflaw.pl and coordinator of The Wiktor Osiatyński Archive) talked about the current situation in Poland and what she sees as promising tools and instruments to address and change the current rule of law backsliding in the EU and particularly Poland. Kim Lane Scheppele (Professor of Sociology and International Affairs at Princeton University) reflected on what (more) can be done and by whom concerning the democratic backsliding happening in several EU member states. Kim stressed furthermore that we cannot longer speak of ‘backsliding’ but should rather call it a ‘concerted assault on democracy in Poland and Hungary’. After the speeches, the participants had the opportunity to ask questions. We want to thank all speakers and participants for joining us for our first seminar organised within the project ‘Safeguarding the Rule of Law in the EU’.