By Enrico Albanesi, Professor, University of Genova
The European Parliament and the Council of the European Union have recently passed Regulation (EU) 2024/1083 of the European parliament and of the Council of 11 April 2024, establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act).
This post aims to discuss Article 5 of the European Media Freedom Act (EMFA), which focuses on protecting the independent operation of public service media. It will also address how domestic laws that do not comply with this article may need to be adjusted.
EMFA was published in the Official Journal of the European Union on 17 April 2024. Most of its articles (including Article 5) shall apply from 8 August 2025. In less than one year, therefore, Member States shall change their legislation, if needed, to comply with it. Not surprisingly, this has recently been stressed by the European Commission in its 2024 Rule of Law Report[1].
In this post, I will also analyse the legal consequences of an infringement of Article 5 EMFA by Member States.
Some specific obligations of Member States are set out by Article 5 EMFA.
From this perspective, the wording of EMFA is much more precise than the original proposal[2]. Article 5 EMFA now reads as follows: «Member States shall ensure that public service media providers are editorially and functionally independent and provide in an impartial manner a plurality of information and opinions to their audience» (Article 5(1) EMFA); «Member States shall ensure that the procedures for the appointment and the dismissal of the head of management or the members of the management board of public service media providers aim to guarantee the independence of public service media providers» (Article 5(2) EMFA) (emphasis added). Therefore, a set of obligations of Member States is now clearly explicit.
Obligations of Member States are as follows:
(i) Firstly, Member States shall ensure that public service media providers are editorially and functionally independent and provide in an impartial manner a plurality of information and opinions to their audience, in accordance with their public service remit as defined at national level in line with Protocol No. 29 (Article 5(1) EMFA).
Editorial and functional independence can be assured by procedures for the appointment and the dismissal of the head of management or the members of the management board of public service media providers that aim to guarantee the independence of public service media providers (as Article 5(2) EMFA reads); by financial resources that safeguard the editorial independence of public service media providers (as Article 5(3) reads); by the monitoring carried out by one or more independent authorities or bodies, or mechanisms free from political influence by government (as Article 5(4) reads).
(ii) Second, Member States shall ensure that the procedures for the appointment and the dismissal of the head of management or the members of the management board of public service media providers aim to guarantee the independence of public service media providers (Article 5(2) EMFA).
In particular, the head of management or the members of the management board of public service media providers shall be appointed on the basis of transparent, open, effective and non-discriminatory procedures and transparent, objective, non-discriminatory and proportionate criteria laid down in advance at national level. The duration of their term of office shall be sufficient for the effective independence of public service media providers.
Moreover, decisions on the dismissal of the head of management or the members of the management board of public service media providers before the end of their term of office shall be duly justified, may be taken only exceptionally where they no longer fulfil the conditions required for the performance of their duties according to criteria laid down in advance at national level, shall be subject to prior notification to the persons concerned and shall include the possibility of judicial review.
(iii) Third, Member States shall ensure that funding procedures for public service media providers are based on transparent and objective criteria laid down in advance. Those funding procedures shall guarantee that public service media providers have adequate, sustainable and predictable financial resources corresponding to the fulfilment of and the capacity to develop within their public service remit. Those financial resources shall be such that the editorial independence of public service media providers is safeguarded (art. 5(3) EMFA).
Therefore, principles concerning those procedures under Article 5(3) EMFA are rather generic.
However, some interpretative tips can be taken from Recital (31) EMFA, under which public service media providers benefit from transparent and objective funding procedures which guarantee adequate and stable financial resources for the fulfilment of their public service remit, enable predictability in their planning processes and allow them to develop within their public service remit. Such funding should be preferably decided and appropriated on a multi-year basis, in line with the public service remit of public service media providers, in order to avoid the risk of undue influence from yearly budget negotiations.
Financial support by the Executive to the public service media providers, as those done within the yearly Budget Act, do not comply with such requirements because they rely on yearly political negotiations on the budget and undermine the independence of the public service media provider: public service media providers cannot rely on funding that does not allow them to plan their activities on a multi-year basis.
(iv) Finally, Member States shall designate one or more independent authorities or bodies, or put in place mechanisms free from political influence by government, to monitor the application of paragraph 1, 2 and 3 (Article 5(4) EMFA).
At the end of the day, the whole principles set out under Art. 5(1), (2), (3) and (4) are rather generic.
However, once again, some interpretative tips can be taken from Recital (31) EMFA, under which Member States shall put in place effective legal safeguards for the independent functioning of public service media providers, «building on the international standards developed by the Council of Europe in that regard». From this perspective, it is important to note the relevance of the guidelines that can be found within the 1996 and 2012 Recommendations of the Committee of Ministers of the Council of Europe[3].
For example, when it comes to the procedures for the appointment and dismissal of the head of management or the members of the management board of public service media providers, the Committee of Ministers recommends that: there is clear criteria for the appointments that are limited, and directly related, to the role and remit of the public service media; the appointments are not used to exert political or other influence over the operation of the public service media; the appointments are made for a specified term that can only be shortened in limited and legally defined circumstances – which should not include differences over editorial positions or decisions. As for the funding, the recommendations are as follows: the public service media is consulted over the level of funding required to meet their mission and purposes, and their views are taken into account when setting the level of funding; the funding provided is adequate to meet the agreed role and remit of the public service media, including offering sufficient security for the future as to allow reasonable future planning; the process for deciding the level of funding should not be able to interfere with the public service media’s editorial autonomy.
It is also important to mention the case-law of the European Court of Human Rights (ECtHR). In 2009, the ECtHR stated that the standards relating to public service broadcasting which have been agreed by the Contracting States through the Committee of Ministers of the Council of Europe provide guidance as to the approach which should be taken to interpreting Article 10 of the European Convention on Human Rights (ECHR) on freedom of expression in this field[4].
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It is now time to focus on the status of domestic legislation that will not be in compliance to Article 5 EMFA and the legal consequences of such an infringement from 8 August 2025.
(i) Domestic legislation that will not be in compliance with Article 5 EMFA, will constitute an infringement of EU law from 8 August 2025. Therefore, Member States, with such domestic legislation, could be subject to infringement proceedings initiated by the European Commission. In parallel, any domestic court could ask the European Court of Justice to issue a preliminary ruling, in order to have Article 5 EMFA interpreted in the sense that it does not permit such domestic legislation.
From the perspective of domestic legislation, domestic Courts are not allowed to disapply domestic legislation that is not in compliance with Article 5 EMFA. Although EMFA is a Regulation (thus, it is directly applicable in Member States under Article 288 TFEU), Article 5 EMFA does not contain provisions that can be immediately applied: therefore, it is not possible to disapply any domestic provision that is not in compliance with it. Therefore, as already mentioned, Member States shall pass some domestic legislation to follow up the obligations under Article 5 EMFA, such as establishing some procedures to appoint/dismiss the head of management or the members of the management board of public service media providers, in order to guarantee the independence of public service media providers; and some funding procedures for public service media providers based on transparent and objective criteria laid down in advance.
However, a case of constitutionality can be brought before domestic constitutional courts, when under the domestic system of constitutional review, such a kind of antinomy between non-immediately-applicable EU provisions and domestic legislation is the task of constitutional courts[5].
(ii) One might also wonder what the status of the head of management or the members of the management board, that were elected after 8 August 2025 on the basis of domestic legislation that is not in compliance with Article 5 EMFA, would be.
From the perspective of EU law, such an action of a Member State would constitute an infringement to EU law, as well. Administrative praxis (that implements EU law) that is not in compliance to EU law can also pose an infringement. However, such a praxis shall be to some degree, of a consistent and general nature.
From a domestic legislation perspective, if the constitutional court declares void domestic legislation that is not in compliance with Article 5 EMFA, then the appointment of the head of management or the members of the management board elected under such a legislation would also be not legitimate.
[1] See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2024 Rule of Law Report The rule of law situation in the European Union COM(2024) 800 final, p. 25.
[2] See Proposal for a regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU COM(2022) 457 final, Article 5.
[3] See Council of Europe, Committee of Ministers, Recommendation No. R (96) 10 on the guarantee of the independence of public service broadcasting, and Council of Europe, Committee of Ministers, Recommendation CM/Rec (2012) 1 on public service media governance.
[4] See European Court on Human Rights (Fourth Section), Manole and others v. Moldova, 17 September 2009, application No. 13936/02, paragraph 107.
[5] This is the case of Italy. See Constitutional Court, Judgement 8 June 1984, n. 170, section 5 Considerato in diritto.