EMFA Article 21. National measures affecting media service providers

Different legislative, regulatory or administrative measures could be justified and conducive to media pluralism. However, some measures could hinder or render less attractive the exercise of the freedom of establishment and the freedom to provide services in the media sector, to the detriment of media pluralism or the editorial independence of media service providers operating in the internal market. Such measures can take various forms, for example rules to limit the ownership of media undertakings by other undertakings active in the media sector or non-media related sectors. They also include decisions related to licensing, such as revoking or making more difficult the renewal of media service providers’ licences, and decisions related to the authorisation or prior notification of media service providers. In order to mitigate their potential negative impact on media pluralism or the editorial independence of media service providers operating in the internal market and to enhance legal certainty in the internal market for media services, it is important that such measures comply with the principles of objective justification, transparency, non-discrimination and proportionality. Administrative measures that are liable to affect media pluralism or editorial independence should be adopted within predictable timeframes. Such timeframes should have a sufficient length to ensure an adequate assessment by media service providers of the measures and their foreseeable consequences. Moreover, media service providers which are individually and directly affected by regulatory or administrative measures should have the right to appeal such measures before an independent appellate body. If the appellate body is not a court, it should have the adequate resources necessary for its effective functioning.

Without prejudice to the application of the Union’s competition and State aid rules and national measures taken in compliance with such rules, it is key that the Board, where national regulatory or administrative measures are likely to significantly affect the operation of media service providers in the internal market, is empowered to issue opinions. The opinions of the Board should focus on national measures that have the potential to disrupt the activities of media service providers in the internal market, for instance by preventing or obstructing their operation in such a way that the provision of their media services in a given market is seriously undermined. That could be the case where a national administrative measure is addressed specifically to a media service provider providing its services to more than one Member State or where it concerns a media service provider that, because of, inter alia, its market shares, audience reach or level of circulation, has a significant influence on the formation of public opinion in that Member State, and it prevents such a media service provider from effectively operating in a given market or entering a new one. The Board can issue such opinions on its own initiative and should issue such opinions at the request of the Commission. The Board should also issue opinions on such measures at the request of individually and directly affected media service providers. To that end, the media service provider concerned should submit a duly justified and reasoned request to the Board. In its request, the media service provider concerned should, in particular, indicate whether it has already exhausted all the available national remedies by challenging the contested measures before national courts or other competent national authorities or bodies and the type of decision or decisions that resulted therefrom. The request should indicate the reasons for which the media service provider concerned considers that the contested measure or measures significantly affect its operation in the internal market and the reasons for which it considers that such measure or measures directly and individually affect its legal situation.