Lennart Lünemann*

In September 2022, the European Commission has presented the European Media Freedom Act (EMFA) as the key instrument to fight media capture, repressive legislation, and surveillance of journalists in the EU. After intense negotiations, the Member States agreed on a common position which was adopted at the end of the Swedish Presidency in June 2023. Yet, observers are wondering if the Council’s version of the EMFA still fulfils the Commission’s goals. While opposition from Member States like Hungary and Poland was expected, it was surprising that traditional ‘allies’ of the Commission in the areas of democracy, civil liberties, and the rule of law like France, Belgium, Denmark, and, especially, Germany have expressed a rather reserved or openly critical position towards the Commission’s proposal of the EMFA. At the same time, other like-minded Member States like Portugal or the Netherlands have advocated in favour of the act.

This blog post seeks to explain why the positions of Member States that claim to be ‘friends of the rule of law’ and that perform well in terms of media freedom and pluralism are so diverging regarding the EMFA. I argue that the EMFA has created a fundamental conflict about the degree of integration in EU media policy: while some Member States want to keep most regulatory prerogatives at the national or regional level, others have the political will to transfer power to the European level. As I will show in this blog post, Member States’ positions differ because they are based on contrasting readings of the proposal. They notably disagree what consequences the EMFA will have, both domestically and in Member States with higher risks for media pluralism, and whether the proposal respects the principle of subsidiarity. Interestingly, possible adaptation costs do not play a decisive role as the EMFA pursues a minimum harmonisation approach. The analysis is based on semi-structured interviews with experts from academia, civil society, and EU institutions as well as government officials of those six Member States that obtain the highest scores in the Media Pluralism Monitor of the European University Institute but adopt very different positions on the EMFA (Germany, Denmark, the Netherlands, Belgium, France, and Portugal).

The EMFA – a risk to media freedom?

“Our position is to find the right balance between collectively giving ourselves the means to respond to attacks on media freedom [in Europe] while limiting as much as possible the negative impact that such legislation might have on our well-functioning system. We don’t want to create problems for ourselves by solving problems elsewhere.”

This general reasoning on the EMFA, as expressed by a French government official, is shared by all six Member States. They publicly agree with the Commission on the overall goals of the EMFA but remain wary not to risk any of their policy achievements with the introduction of a new EU legislation.

However, there are two notable disagreements regarding the problem definition and the risk assessment mentioned in the previous quote. Firstly, most government officials only see the problems ‘elsewhere’ – notably in Hungary and Poland. Only the Dutch and Portuguese interview partners insist on the fact that these ‘foreign’ problems present a threat to European democracy as such, and, therefore, also for themselves.

Secondly, Germany, and in particularly the German Länder who lead the negotiations for Germany, see an actual risk that current levels of media freedom might be weakened by the EMFA. This perspective is in stark contrast to the views of all experts and other Member State officials who agree that the impact of the EMFA on national standards of freedom and pluralism will be low or close to zero. This is because the EMFA is designed as a minimum harmonisation regulation in the most sensitive areas (see articles 4, 6 and 21). However, when directly asked which articles prevent Germany from taking tougher measures, the interviewed Länder official could only name article 17 as a possible threat to the prohibition of discrimination and transparency requirements on online platforms. Hence, warning that the EMFA jeopardises the protection of journalists in Germany, is less an evidence-based criticism of the proposal, but more a ‘rhetoric of reaction’ (a concept of Albert Hirschman to describe how policymakers oppose progressive reforms that “one abhors, but whose announced aim one does not care to attack head-on”).

Contesting the need for EU action  

Besides the possible impacts of the EMFA on national media systems, the discourse on the act is particularly centred around the question of subsidiarity, i.e., if EU action is needed in the first place to fight media capture and support independent journalism in Europe. Member States find three different answers to this question: Firstly, Member States that are more supportive of the EMFA like Portugal and the Netherlands explicitly want the EU to regulate media freedom and pluralism because they are convinced that Member State governments who curtail these rights today do not have any interest in upholding them in the future. For them the proposal of the Commission does not infringe on the principle of subsidiarity.

Secondly, France, Belgium, and Denmark think that the EMFA partly infringes on the principle of subsidiarity and the respect of Member States’ competences (see for example the regulation of the written press and financing requirements for public service media). These legal concerns are phrased as “technical problems” by France and Belgium whereas the Danish interviewee wants “EU interference” to be reduced to a minimum in some parts of the text. However, all three Member States emphasize that they fundamentally support stronger EU action in media policy.

Lastly, the German Länder argue that the subsidiarity principle is generally not respected by the proposal. They criticize more articles based on subsidiarity concerns than the other Member States (see articles 3, 5, 6, 12, 20-22), according to a Council official they “use the argument at every single occasion” in the Council Working Party, and they are generally convinced that their regional authorities are closer to real-world situations and, therefore, in a better position to regulate media systems than EU institutions.

Vested interests

Interestingly, experts and government officials of other Member States have noticed that the German Länder have difficulties substantiating their criticism with regard to the proposed text. Given the very good performance of Germany in terms of media pluralism and freedom, they perceive the German opposition as a “selfish” act of “protecting vested interests”. The German interview partner from the Länder also acknowledges that the media and audio-visual councillors in the sixteen state chancelleries (‘Rundfunkreferenten’) are particularly attached to the traditional regulatory system in which they have a powerful role. Since media policy is still one of the few, almost exclusive prerogatives of the Länder, they do not want to lose (parts of it) to the EU.

The EMFA as a minimum harmonisation approach – no need for regulatory adaptation

The protection of vested interests of government officials should not be confounded with the goal of Member States to upload their regulatory system to the EU level to avoid adaptation costs. Although Member State representatives agree that they want to avoid a ‘misfit’ between their current legislation and the EMFA, none of the interviewees thinks that the proposal of the Commission is far away from the systems in place since it follows a minimum harmonisation approach. Additionally, the few points of the EMFA that might conflict with existing legislation (see for example some definitions or the regulation of the written press) concern all of the well-performing Member States, both supporters and opponents of the EMFA. Hence, in contrast to previous integration steps like the Audiovisual Media Services Directive (AVMSD), possible adaptation costs for different national regulatory systems cannot explain why some Member States oppose the act more strongly than others.

The same applies to potential costs for domestic interest groups like media service providers or national associations of journalists. Although Member States expect that the EMFA might create some additional burdens (new standards on editorial independence, transparency, and market concentration), the “media landscape will not be turned upside down by the EMFA” according to a Belgian government official. However, the level of lobbying, especially from German and French press publishers, is striking. While some interview partners suggest that the potential administrative and economic costs for media service providers are merely hot air that “have been strategically introduced by some Member States to complicate the negotiations”, future research on the influence of lobbying on the position of Member States will be needed.

Lack of political will

The degree of support or opposition to the European Media Freedom Act varies strongly among Member States that are well-performing in terms of media freedom and pluralism standards –from general support with slight reservations (Portugal and the Netherlands) to a rather critical assessment of the EMFA (France, Belgium, and Denmark) or even a principled opposition to the act (Germany). Analysing the discursive construction of the EMFA in the Council shows that Member States disagree both on the contents of the proposed policy itself and on the more general question of subsidiarity.

Support to the act stems from the belief EU action presents a necessary added value. In contrast, Member States that are more critical of the EMFA question more strongly if the EMFA proposal respects the principle of subsidiarity and whether it will be an effective instrument. The rhetorical opposition of the German Länder has been particularly pronounced, but Denmark, France, and Belgium also lack the political will to reconsider existing national and regional regulatory prerogatives to possibly achieve a better outcome for the EU as a whole.

Consequently, these Member States remain very reluctant to empower the European Commission to develop new tools to fight democratic backsliding in EU Member States. Interviewed experts mostly criticize that governments do not understand the deterioration of media freedom in Hungary, Poland, or Greece as a European problem and that they tend to think their Member States are immune to such developments. These observations are particularly worrying since “the essence of democratic backsliding in the European Union […] is a deterioration of the quality of deliberation”.

Disclaimer

This blog post is based on the author’s master thesis submitted at the College of Europe (Bruges) in May 2023. It analyses policy positions of Member States on the European Media Freedom Act as they have been formulated in the time between September 2022 (publication of the proposal) and April 2023. Please feel free to reach out if you have any questions on the data collection, the research methods, or any other aspect of the thesis.

Lennart Lünemann holds a master’s degree in European Political and Governance Studies from the College of Europe (Bruges). His research mainly focuses on threats to democracy and the rule of law in the European Union. In October 2023, he will start working as a Blue Book Trainee at the European Commission, notably dealing with the European Democracy Action Plan. Contact: lennart.luenemann@coleurope.eu