EMFA Article 5. Safeguards for the independent functioning of public service media providers

Public service media providers should be understood to be those concurrently entrusted with a public service remit and receiving public funding for the fulfilment of that remit. That should not cover private media undertakings that have agreed to carry out, as a limited part of their activities, certain specific tasks of general interest in return for payment.

Public service media providers play a particular role in the internal market for media services by ensuring that citizens and businesses have access to a diverse content offering, including quality information and impartial and balanced media coverage, as part of their remit as defined at national level in line with Protocol No 29 on the system of public broadcasting in the Member States, annexed to the TEU and the TFEU. They play an important role in upholding the fundamental right to freedom of expression and information, enabling people to seek and receive diverse information, and in promoting the values of democracy, cultural diversity and social cohesion. They provide a forum for public discussion and a means of promoting the broader democratic participation of citizens. The independence of public service media providers is key during electoral periods to ensure that citizens have access to impartial quality information. However, public service media providers can be particularly exposed to the risk of interference, given their institutional proximity to the state and the public funding they receive. That risk is exacerbated by uneven safeguards related to balanced coverage by and independent governance of public service media providers in the Union. Both the communication from the Commission of 13 July 2022 entitled ‘2022 Rule of Law Report’ and the 2022 Media Pluralism Monitor by the Centre for Media Pluralism and Media Freedom confirm the fragmentation of such safeguards and point to risks stemming from inadequate funding. As shown by the European Audiovisual Observatory in its 2022 report entitled ‘Governance and independence of public service media’, guarantees for the independent functioning of public service media providers vary across the Union, with differences in their scope and the level of detail in national approaches.

Legal frameworks to ensure balanced coverage by public service media providers vary across the Union. Moreover, rules vary across the Union as regards the appointment and dismissal of the management of public service media. For instance, while most national legal orders set out several grounds for dismissal, others do not provide for any specific rules. Where rules exist, they are, in some cases, insufficient or are not effective in practice. There are also cases where legislative reforms in Member States have increased governmental control of public service media, including as regards the appointment of heads or members of the management board of public service media. Approaches to ensuring the adequacy and predictability of funding for public service media providers also diverge across the Member States. Where safeguards do not exist or are insufficient, there are risks of political interference in the editorial line or governance of public service media. Not having safeguards for the independence of public service media providers or having insufficient ones could also lead to a lack of stability in funding, thus exposing public service media providers to the risk of political control or further political control. That could lead to cases of partial reporting or biased media coverage by public service media providers, instances of interference by the government in the appointment or dismissal of their management or arbitrary adjustments to or the unstable funding of public service media providers. All of that negatively affects the access to independent and impartial media services, thereby affecting the right to freedom of expression as enshrined in Article 11 of the Charter, and could lead to a distortion of competition in the internal market for media services, including for media service providers established in other Member States.

In national media environments characterised by a co-existence of public and private media service providers, public service media providers contribute to the promotion of media pluralism and foster competition in the media sector by producing a wide range of content that caters to various interests, perspectives and demographics and by offering alternative viewpoints and programming options, which provides a rich and unique offering. Public service media providers compete with private media undertakings and online platforms, including those established in other Member States, for audiences and, where applicable, for advertising resources. That concerns commercial broadcasters in both the audiovisual and radio sectors and publishers, and is particularly true in the current digital media environment in which all media expand into the online sphere and increasingly provide their services across borders. Where such a dual and competitive media market, which is distinctive for large parts of the Union, is functioning well, it ensures a diverse and qualitative supply of media services in all sectors. However, where public funding does not serve to fulfil the remit benefitting all viewers but, instead, serves partisan views, due to political interference in governance or the editorial line, it could affect trading conditions and competition in the Union to an extent contrary to the common interest. The Court of First Instance has confirmed that public service broadcasting can have its state funding declared compliant with the provisions of the TFEU on State aid only inasmuch as the qualitative requirements set out in the public service remit are complied with .

While the risk of what is commonly referred to as ‘media capture’ is relevant for the entire market for media services, public service media providers are particularly exposed to such a risk, given their proximity to the state. Diverging or insufficient safeguards for the independent functioning of public service media providers could prevent or disincentivise media service providers from other Member States from operating in or entering a given media market. While independent media undertakings invest their resources in high-quality reporting which complies with journalistic standards, certain ‘captured’ public service media providers which do not comply with such standards could provide imbalanced reporting, while being subsidised by the state. The competitive advantage that independent media can obtain through independent reporting could be lessened as ‘captured’ public service media providers might unduly retain their market position. Politicised media markets can affect advertising markets as a whole because businesses have to factor in politics in addition to devising effective advertising campaigns. If public service media providers, which are usually considered as trusted sources of information, provide biased coverage on the political or economic situation or concerning specific economic actors as a result of being captured, that might also reduce the ability of undertakings to inform themselves properly about the economic situation in a given market and, therefore, their ability to take informed business decisions. Such capture could therefore adversely impact the functioning of the internal market. Finally, as a result of biased reporting by certain ‘captured’ public service media providers in some Member States, citizens might turn to alternative sources of information, in particular those available on online platforms, which might further weaken the level playing field in the internal market.

It is thus necessary that Member States, building on the international standards developed by the Council of Europe in that regard, put in place effective legal safeguards for the independent functioning of public service media providers across the Union, free from governmental, political, economic or private interests, without prejudice to national constitutional law consistent with the Charter. That should include principles suited to the ways in which Member States organise their public service media, such as those that exist in national administrative law frameworks or national corporate law frameworks as applicable to private listed undertakings, as regards the appointment and dismissal of the persons or bodies which have a role in determining editorial policies or constitute the highest decision-making authority in that respect within the public service media provider. Those principles should be set out at national level. It is also necessary to guarantee that, without prejudice to the application of the Union’s State aid rules, 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. This Regulation does not affect the competence of Member States to provide for the funding of public service media providers as enshrined in Protocol No 29.