With the EMFA, the European Commission issetting out new “requirements for well-functioning media market measures and procedures”1 with the objective of tackling obstacles to the functioning of the internal market for media services2, such as disproportionate and inadequate national regulations affecting the media and press sectors. These national regulations are considered as “regulatory burdens” and “obstacles to the exercise of economic activities” in the European media market with the risk of creating “legal uncertainties” weakening investment in media services3.
We, organisations from the audiovisual and cultural sectors, are concerned that this approach may weaken and possibly challenge the existence of protective and ambitious cultural policies set out by Member States to promote European audiovisual creation in all its diversity.
Article 20 in the EMFA proposal states that Member States may not take measures that affect “internal market for media services” unless they are proportionate and justified. It adds that such measures should be “reasoned, adequate, transparent, and objective and non-discriminatory”. If adopted, the broad wording of the Article 20 provision would create significant legal uncertainty at national level: the implementation of a number of cultural policies stemming from national legislations adopted in procedural fairness and fully consistent with Article 167 TFEU could potentially be disputed by media service providers’ unilateral interpretation of their disproportionality or unjustifiability.
A wide range of measures could be called into question, such as regulated window release systems, known as media chronology and anti-concentration measures. It could also challenge the implementation measures of the 2018 Audiovisual Media Services Directive (AVMSD) such as the minimum proportions of European works in broadcasters’ retransmission time and in on-demand services catalogues, as well as media services’ obligation to contribute financially to the production of European works. This could create a chilling effect on Member States’ ability to regulate the promotion and distribution of European works at a time of sea-change for the audiovisual sector in Europe and worldwide.
In addition, the proposed Article 20 establishes a new complaint mechanism4for media services providers to challenge essential measures for the creation, production and distribution of European audiovisual works and the diversity of cultural expressions solely based on internal market criteria. This new procedure would be in complete contradiction with Article 167 TFEU and the share of competences between the European Union and Member States, the long-established European audiovisual policy, notably AVMSD provisions on the promotion and distribution of European works and the State aid rules.
While welcoming the European Commission’s will to dispel misunderstandings about the objectives pursued5, we remain deeply concerned that the regulation would embed national cultural policies into internal market rules. We believe the proposed Article 20 EMFA as drafted, will be the main tool to disrupt key policies implemented by Member States to support film and TV creation and local ecosystems at a critical time for the sustainable future of our sector across the European Union.
Protecting media pluralism and media independence must not, inadvertently or otherwise, lead to undermining cultural diversity – one of the European Union building block.
We call on the European co-legislators to revise EMFA Article 20 to ensure continued sustainable conditions for the local audiovisual creation across Europe, which is a cornerstone of well-functioning democracies and an essential mean to remain united in diversity.