By Erik Longo, Professor at the University of Florence

This blog post discusses the legal basis chosen for the European Media Freedom Act and its implications for EU media regulation. It investigates the challenges associated with Article 114 TFEU, including concerns about expanding EU competencies in media policy. Lastly, it explores how the EMFA reflects broader shifts in EU regulatory frameworks and underscores the critical role of safeguarding media freedom and democracy in the digital age.

Examining the evolution of European Union law and policies over the past two decades reveals a growing emphasis on creating a new regulatory framework for the media. This period has shifted from ensuring media pluralism to actively promoting media freedom at the EU level. The need for new policies is evident for several reasons. Firstly, the media and information landscape is in a constant state of evolution. Secondly, recent crises and conflicts highlight the crucial role of the media sector and its regulation in shaping public opinion, demonstrating its significance in promoting democracy rather than mere speculation. Finally, the emergence of Generative Artificial Intelligence introduces a powerful tool that can disrupt the information environment and fundamentally create new global threats.

Against this background, the approval of the European Media Freedom Act (EMFA) in 2024 marked a pivotal development in regulating media pluralism and completing the regulation of information technologies across Europe. This new regulation underscores the EU’s commitment to exploring and extending the boundaries of the existing, limited legal framework governing media policy, which primarily focuses on implementing the internal market and enforcing EU competition law. EU institutions have demonstrated a genuine willingness to actively support the media in enhancing both the functionality and quality of democracy.

In this blog post, I discuss a preliminary issue regarding the EU Institutions’ willingness to enhance media freedom in Europe: the chosen legal basis for the EMFA. As we know, since the introduction of the proposal for a regulation establishing a common framework for media services in the internal market and amending Directive 2010/13/EU, the Commission expressed the need to use the legal basis provided by Article 114 TFEU. This latter is set up to adopt measures to approximate the provisions laid down by law, regulation, or administrative action in the Member States, which have as their object the establishment and functioning of the internal market. Media sector regulation is only one of the many areas of the digital single market where this legal basis has been used. The aim of these regulatory initiatives concerning digital technologies is always the same: the EU is taking action through harmonisation instruments to prevent national legislation fragmentation and reclaim European digital sovereignty, ultimately aimed at better safeguarding fundamental rights and the rule of law. Two significant components underline this policy strategy: firstly, the use of the word “Act” in the title of these regulations through a process referred to as act-ification, and, secondly, the establishment of a new governance framework designed to protect specific markets related to the protection of certain fundamental rights. This process has been discussed on many occasions so far. In July 2024, Hungary challenged the legal basis of the EMFA before the Court of Justice of the European Union and asked the top judges to strike down the new regulation to preserve media freedom. 

Given this entanglement, the legal basis issue presents a broader and more complex challenge in the context of the EMFA. To truly grasp the implications of this situation, it is essential to dive deep into the policy options being discussed in Brussels.

Scholars and policy-makers are navigating a fascinating debate surrounding the legal framework of the EMFA, facing two distinct interpretations that challenge their perspectives and decision-making processes. The first position emphasises that the EU lacks the power to approve the EMFA, as there is no explicit reference in the Treaties regarding media pluralism. Therefore, it would be better to maintain the power to protect media freedom and pluralism in the Member States issues should jurisdictions because these are issues to be treated at a more national level (this explains the importance of Protocol 29 on “The system of public broadcasting in the Member States” accompanying the TFEU) and because cultural sovereignty problems should be protected. Member States are primarily obligated to guarantee freedom of expression for all citizens, a responsibility reinforced by national and supranational courts. Consequently, the EU should focus on regulating media services rather than legislating on broader concepts of media freedom and freedom of expression. Therefore, there is limited potential for expanding EU competencies through the principles of subsidiarity and proportionality to facilitate the regulation of freedom of expression. It is essential to consider the allocation of powers and the limitations on EU action when determining the appropriate legal basis and type of legislative instrument for specific initiatives. Deviating from this approach could jeopardise the principle of conferred competencies, as it may significantly expand internal market competencies in a way that could fundamentally alter the constitutional framework of competence in competition law, as outlined by the Lisbon Treaty.

Furthermore, while it is important to recognise that the internal market objective is central to the EMFA, Article 114 TFEU stipulates the necessity of demonstrating actual obstacles to the internal market that the regulation aims to address. Since the EU does not possess the authority to create uniform domestic conditions across all Member States independently, the barriers to trade or pertinent distortions in competition must be evidenced. The impact assessment accompanying the EMFA proposal deliberately concentrated on sector-specific and country-specific issues rather than broader European concerns that warrant supranational regulation of freedom of expression. Thus, it would have been more accurate to avoid using the term “fragmentation” and instead focus on the specific challenges faced by individual Member States, particularly Poland and Hungary, along with various media-related regulatory issues.

On the contrary, the second position claims that the EU does have the power to regulate freedom of expression and can use Article 114 TFEU to do so in a more “creative way.” In the past decades – as earmarked by the Commission Staff Working Document in 2007 – it became clear that the problem with media pluralism is more complex than one simply arising from the protection against the concentration of ownership in the market. Regulatory frameworks at the national level frequently fail to address the growing concentration of media power due to weak enforcement mechanisms or deliberate inaction driven by political complicity. 

When systemic failures of democracy are suspected, all social subsystems, including the use of public resources, the economy, and institutional structures, could be in danger. The erosion of media pluralism has numerous harmful effects on EU citizens that extend beyond the borders of individual Member States. Firstly, it hinders the very idea of European integration, including the free movement of media services and persons. Secondly, the goals of the intervention cannot be effectively addressed through the isolated actions of individual states, as the issues at hand are increasingly cross-border and not confined to specific nations. In addition, digital technologies have transformed the media market, especially in financing, distribution, and consumption, so the principles and rules regarding this market have acquired a different dimension. Thus, while in the past the problem of pluralism was considered only in the wake of the market players, today we have to consider the issue of protecting consumers’ right to choose among many different services.

Following this argument, scholars assert that there is an EU dimension for freedom of expression, which is closely related to the development of democracy in the Union. Therefore, protecting freedom of expression is important for the survival of our supranational institutions. At the same time, giving to the EU institutions only crisis-driven enforcement mechanisms would not protect citizens’ freedom of expression adequately. Instead, a methodologically sound, reliable, permanent and periodic monitoring and evaluation process based on objectivity and equality (monitoring) is recommended to assess potential risks in Member States.

Even the more sceptical scholars regarding Union citizenship acknowledge that safeguarding democracy and freedom of expression is essential to the unwritten social contract among European peoples.

Responding to advocates for new regulatory interventions in media freedom, sceptics highlight two shortcomings inherent to the Commission’s policy approach to enacting the EMFA. The first one regards the category of regulation to which EMFA belongs. The EMFA, together with the DSA, the DMA, the AI Act, and the Data Act, falls into the category of ex-ante regulation, mostly directed at specific private operators, stressing the decisiveness of free movement of digital services before competition law applies. While, on the one hand, such regulation has been dictated by the need to realise the markets of the information society, it is also aimed at overcoming the enforcement difficulties of other rules, in particular competition law. There has been a discussion about whether the market power held by online platforms, along with their ability to create barriers to entry in preferred markets, has been effectively and promptly addressed through the enforcement of Article 102 TFEU and merger control. Alternatively, it may be argued that the laissez-faire approach – and not the excessive fragmentation – that has characterised the development and consolidation of the digital market has contributed to failures within this market and related sectors, such as the media industry, resulting in distortions that necessitate the implementation of sector-specific regulation.

The second shortcoming concerns the possibility — through the EU’s intervention — of treating freedom of expression only as a commodity or service that can be bought and sold in a marketplace. This interpretation, which is far from the doctrine of freedom of expression in many EU countries, can be implied if we stretch the chosen policy option (encouraging undistorted competition, ensuring fair allocation of resources, and avoiding fragmentation), which is used to justify an intervention broader than market regulation. This is also evident in the overlap between premises and consequences in Recital No. 2 of EMFA, where aspects of a cultural nature are prerequisites for the effective provision of services in their economic context. From both fundamental rights and power allocation perspectives, this reasoning may result in framing the concept of freedom of expression within a market context, leaving aside the priority of liberty.

Understanding and enforcing the EMFA begins with recognising its necessity for media freedom in Europe, not considering only how it works. The EMFA indeed aims to tackle a disease while acknowledging significant limitations associated with harmonisation in areas beyond the Union’s authority. However, no EU-level policy alternatives are available to regulate the digital market. In the absence of a treaty change, the competencies and procedures granted by Article 114 are the only viable path forward, even because they facilitate a high level of parliamentary involvement during the approval phase and establish shared competencies with Member States according to Article 5 TEU. Additionally, it is important to highlight the distinction from the competence outlined in Article 103 regarding “competition.” The harmonisation competence related to the internal market allows for greater flexibility in drafting measures, unrestrained by mere competition law objectives, and may have a potentially pre-emptive effect on the entire policy area within the Digital Single Market.

This interpretation would also follow the rulings of the Court of Justice of the European Union in the famous cases regarding Article 114, such as Tobacco Advertising, where the CJEU allowed the EU’s legislative organs to design measures according to their desired legal base. Furthermore, opting for regulation instead of a directive is justified when considering the need for rapid regulation of the digital market. From a constitutional law perspective, the shift in the EMFA from media pluralism to media freedom represents a potential constitutional advancement for the EU. The regulation indicates that the Commission prioritised addressing the “distortions” within the internal market and aimed to enhance cross-border competition in the media sector, particularly for audiovisual media services and video exchanges. However, the regulation’s scope is narrower than its title suggests. 

The EMFA appropriately aligns with the EU’s current “code” of digital regulation. Establishing a new administrative framework for the Digital Single Market is one of the Commission’s most significant challenges. Shortly, key issues will revolve around creating and refining the enforcement mechanisms for this framework. This type of regulation necessitates a novel institutional role for the Commission, which has established a network of administrative authorities that actively engages Member States and private media industries and platforms. A critical question regarding the new framework is whether the responsibilities and powers assigned to this new network of institutions and private entities will effectively address the challenges of freedom of expression across the EU.

Media freedom is essential for the EU’s democratic future. We trust that the CJEU will start upholding this principle in its next decision on Hungary’s action against the EMFA in the case C-486/24.