C Explanatory memorandum by Sir Roger
Gale, rapporteur for opinion
1 General comments
1. Media regulation has been undergoing frequent changes
over the past decade due to the technical convergence of the press
and broadcasting with the Internet and other online media. The average
number of hours spent using media have increased per capita, and
the economic competition for customers and advertising revenue has
increased even more. In the wake of such competition, especially
Internet companies have grown into global players with considerable
economic and political powers. The latter have had a remarkable
impact on European Union policies and regulation in general, which
consequently focused more on global economic aspects rather than
traditional media policies based on cultural and democratic values including
regional diversities.
2. Assembly
Recommendation
1855 (2009) on regulation of audiovisual media services reaffirmed
“that the AVMS [European Union Audiovisual Media Services] Directive
has the main objective of ensuring freedom of services within the
internal market of the European Union in accordance with primary
European Community law. This approach differs from the ECTT [European
Convention on Transfrontier Television], which has the aim of ensuring
freedom of transmission and retransmission of broadcasting in Europe,
regardless of frontiers, in accordance with Article 10 of the European
Convention on Human Rights”.
3. The European Convention on Transfrontier Television is a valid
and existing treaty under public international law. However, in
a letter of 10 December 2010 to the Secretary General of the Council
of Europe, Ms Neelie Kroes, Vice-President and Commissioner for
the Digital Agenda of the European Union, expressed the views that
the European Union had exclusive competence for the issues covered
by the revised convention and that EU member States were not allowed
to become a Party to this revised convention. She had furthermore
indicated that the European Union did not intend to become a Party
to the convention as this would constrain the European Union in
its action.
4. Article 3 of the Treaty on the Functioning of the European
Union confers upon the latter exclusive competence in the following
areas only: a) customs union; b) the establishing of the competition
rules necessary for the functioning of the internal market; c) monetary
policy for the member States whose currency is the euro; d) the
conservation of marine biological resources under the common fisheries
policy; and e) common commercial policy. While the European Union
has shared competence with its member States in the areas of internal
market as well as freedom, security and justice under Article 4,
Article 6 of that Treaty clearly stipulates that the European Union
shall have competence only to carry out actions to support, co-ordinate
or supplement the actions of its member States in such areas as
culture and industry. Broadcasting falls under the latter. This
is also reflected in Article 24 of EU Directive 89/552/EEC which
relates to the ECTT. The European ministers responsible for media
policy had agreed on the ECTT in 1989 before some of them subsequently
agreed on the corresponding Directive 89/552/EEC on television without
frontiers.
5. This case is disturbing and requires an adequate political
debate in Europe, because it concerns the power of member States
of the European Union to legislate and enter into international
treaties in an area which is of high national importance, but it
equally affects a great number of member States of the Council of Europe
which are not members of the European Union.
6. Obviously, broadcasters and other audiovisual media would
highly benefit from achieving a revision of the current ECTT in
line with EU Directive 2007/65/EC on Audiovisual Media Services
(AVMS), which would allow Europe to be united in an area where the
national borders of the 28 EU member States do not and should not
matter, and beyond which EU Directives cannot reach.
2 Specific explanations
7. Amendment A: Despite repeated efforts by the Council
of Europe, the European Commission has not clarified the legal standpoint
expressed by its Vice-President and Commissioner for the Digital
Agenda, Ms Neelie Kroes, in her letter of 10 December 2010 to the
Secretary General of the Council of Europe, in which she stated
that the European Union had exclusive competence for the issues
covered by the ECTT and that EU member States were not allowed to
become Party to this Council of Europe convention. Article 24 of
the Directive 89/552/EEC as amended by Directive 2007/65/EC contradicts
this position.
8. Amendment B: The current situation is determined by the blockage
by the European Commission. The European Commission threatened EU
member States with sanctions if they signed the revised ECTT. Nevertheless,
the European Commission has continuously refused to explain its
legal views to the member States who had signed the current ECTT.
It is appropriate to identify this situation rather than calling
it a “situation”.
9. Amendment C: This amendment in fact only concerns two phrases
in the second sentence of paragraph 4: the phrase “is convinced
that the Council of Europe should” is replaced by the phrase “strongly shares
the legitimate intention expressed by the high contracting parties
of the ECTT to”. Under public international law, the Parties to
the ECTT are the masters or owners of the ECTT. They had worked
on a draft revision for several years and finally expressed their
intention to revise and modernise the ECTT. This should be stated
clearly in the resolution.
10. Amendment D: The competences of the European Union are determined
by the EU member States under treaty law, that is the so-called
primary EU law. The European Union should therefore be invited to express
its views on what is within its exclusive competence, rather than
what is outside such competence.
11. Amendment E: The focus of this report is on the European Convention
on Transfrontier Television and thus also on broadcasting or audiovisual
media. The idea that the European Union should “consider other possible
avenues aimed at adopting a modern legal framework governing media
freedom issues at the pan-European level” is not convincing.
12. Firstly, media freedom is guaranteed by Article 10 of the
European Convention on Human Rights at pan-European level, interpreted
and kept up-to-date through the case law of the European Court of
Human Rights. It seems neither desirable nor feasible to elaborate
a new legal instrument which would compete with and thus probably
undermine Article 10. Secondly, even assuming that a justification
for a new legal instrument would existed in the field of media freedom,
standard setting in this area should be a task of the Council of
Europe and its member States, also bearing in mind that the European
Union would not have any mandate to produce or otherwise provide
avenues for a legal framework outside its geographical limits. Finally,
any possible alternative “modern legal framework” would probably
be intended to replace the ECTT, which is certainly not what we
would like to propose here.
13. Amendment F: It is legally neither feasible nor desirable
for member States of the European Union to work towards a trans-European
legal framework without all the member States of the whole Council
of Europe. Freedom of expression and media freedom are protected
by Article 10 of the European Convention on Human Rights and the
latter must not be undermined by drafting another trans-European
legal framework.
14. Amendment G: It may indeed be useful for the Committee of
Ministers to start work on guidelines for member States on media
freedom. Obviously, such guidelines would have to be based on the
relevant case law of the European Court of Human Rights under Article
10 of the Convention. In addition, however, the Committee of Ministers
should be reminded of the directly relevant Assembly
Resolution 1636 (2008) on indicators for media in a democracy, which contains
a check list of fundamental media freedom principles.
