In the face of the entrenched rights of the incumbents

Posted on September 12, 2007 | Filed Under communication technologies, fundamental rights 

Italy’s relevant national legal framework for broadcasting is, as we learn from Advocate General Poiares Maduro’s opinion in the Case C-380/05, Centro Europa 7, “a complex amalgam of laws and decree‑laws”.

In 1997 the Maccanico Law introduced new restrictions on concentration in the market for national broadcast television, with a view to ensuring competition and respect for the principle of pluralism. Under the Maccanico Law, no one was to be allowed to operate more than 20% of national broadcast channels as from 30 April 1998. However, incumbent operators exceeding the 20% threshold were allowed to continue their broadcasting “on a temporary basis”, but channels which breached the threshold were eventually to cease terrestrial broadcasting, following the adoption of a national plan for the allocation of frequencies.

In a public tender procedure in 1999, Centro Europa 7 Srl obtained national television broadcasting rights on terrestrial frequencies. Regarding the specific frequencies, the Ministerial Decree granting the broadcasting rights referred to the national allocation plan which had yet to be implemented. According to the Decree, the AGCom and the Ministry of Communications were to implement the national allocation plan within 24 months from the notification of the Decree.

But, not really surprising considering the Italian political situation and the “complex amalgam” of politics and broadcasting at that time, nothing much happened:

“The national allocation plan failed to materialise. […] The deadline expired, but no plan was ever drawn up.”

So Centro Europa 7 held a license but could not broadcast, whereas incumbent operators “had not obtained broadcasting rights, but were none the less allowed to continue their broadcasting activities”. Centro Europa 7 went to court and the case finally ended up in the European Court of Justice via a request for a preliminary ruling, made by the Italian Consiglio di Stato.

Advocate General Poiares Maduro did - for good reasons - not answer any of the questions as they were put, since they were partly inadmissible, partly irrelevant, and partly not very well worded. But the Advocate General took the opportunity to make two key points:

First: while the ECJ should not reverse its long‑established viewpoint that not any violation, by the host State, of a fundamental right of a national from another Member State may hamper the exercise of the right to free movement, “the time is ripe to introduce a refinement into this line of case‑law.” In his view, (only)

“serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, […] qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order.”

So in the Centro Europa 7-Case the issue of freedom of expression is not the main focus of the Advocate General’s opinion, but rather the question whether there has been a restriction of free movement.

The second important point in the opinion is the need for transparent and non‑discriminatory selection procedures for broadcasting rights and especially that “full effect be given to the outcome of those procedures.”

Taking into account the legitimate expectations and the right to property of the incumbent operators might require the State to compensate the incumbent operators, but it “does not necessarily justify the continuance of a situation in which the rights of new entrants are rendered nugatory in the face of the entrenched rights of the incumbents.”

The Advocate General also explicitely refers to case-law of the European Court of Human Rights, pointig aut that

“the part often played by the media as editors of the public sphere is vital to the promotion and protection of an open and inclusive society in which different ideas of the common good are presented and discussed. In this regard, the European Court of Human Rights has stressed that the fundamental role of freedom of expression in a democratic society, in particular where it serves to impart information and ideas to the public, ‘cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor’. Accordingly, the application of Community law in the area of national broadcasting services is guided by the principle of pluralism and, moreover, assumes special significance where it strengthens the protection of that principle.”

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2 Responses to “In the face of the entrenched rights of the incumbents”

  1. “And haste is needful in this desperate case”*: coming up next at the ECJ : contentandcarrier on January 7th, 2008 11:07 pm

    […] possibility to address questions of media pluralism and fundamental rights (see our previous post here). As in the Promusicae case, the opinion of the advocate general might be more interesting to read […]

  2. Objective, transparent, etc.: The Spectrum-Assignment Mantra, ECJ-approved : contentandcarrier on January 31st, 2008 1:58 pm

    […] mantra in the judgement delivered in the Centro Europa 7-case (for a brief summary of the case see this post): Article 49 EC and, from the date on which they became applicable, Article 9(1) of the Framework […]

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