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PSB and EU Obligations

PSB and EU Obligations. Professor Lorna Woods. EU Law and PSB. Treaty Obligations. EU Legislation. AVMSD Minimum harmonisation No reference to PSB NB Article 30 and independent regulatory authorities Review NB external agreements as part of enlargement. EU Law and Human Rights.

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PSB and EU Obligations

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  1. PSB and EU Obligations Professor Lorna Woods

  2. EU Law and PSB Treaty Obligations EU Legislation AVMSD Minimum harmonisation No reference to PSB NB Article 30 and independent regulatory authorities Review NB external agreements as part of enlargement

  3. EU Law and Human Rights National constitutions Articles 2 & 6 TEU General principles ‘economic EU law’ ECHR EU Charter of Fundamental Rights

  4. National constitutions • Germany • broadcasting decisions • Italy Italian constitutional case (Decision n. 836 of 14 July 1988): freedom of expression required the State to ensure adequate funding for public broadcasters (but note Gasparri law) • Note problems in new democracies, despite constitutional guarantees of freedom of expression • Also issues in Spain and Portugal ……

  5. Rundfunkurteil North Rhine-Westphalia Broadcasting Case “The right also requires, however, a positive legal order which ensures that broadcasting is not abandoned to individual societal groups any more than it is to the state, and that it instead records and passes on the diversity of topics and opinions which play a role in society as a whole. This purpose demands material, organizational, and procedural rules that are oriented toward broadcasting's task and suited to effect that which the Basic Law's Art. 5(1) in its entirety seeks to guarantee. Cf. BVerfGE 57, 195 [320]. How in particular to structure this legal order is for the legislature to determine. The Basic Law does not prescribe any particular model. Nor does it require consistent realization of any model previously chosen. Instead, what matters constitutionally is simply the guaranteeing of free and comprehensive reporting.” BVerfGE83, 238 1 BvF 1/85, 1/88 6

  6. Assessment • Note description of what Article 5 requires • Fourth Broadcasting Case BVerfGe73 118 1BvR1/84 • Can it be achieved without PSB? • Discovery of general principles from national constitutions • Minimalist or maximalist approach? • Grogan, Milk cases

  7. Freedom of expression • Article 10 ECHR/Article 11 EUCFR • Phrased differently, but explanations for Article 11 EUCFR relate back to Article 10 ECHR • NB Article 11(2): significance? • EUCFR can go higher than Article 10 ECHR • Positive obligations • Manole • Centro Europa 7 • Description of end point, not means to get there

  8. Scope of EU law • Acts of institutions • Acts of member states within the scope of EU law • Acting as agent for the EU • Implementing EU law (e.g. transposition of directive) • Case C-442/00 Caballero • Derogating from EU law (e.g. free movement or competition rules) • ERT • Space where EU has NOT acted but where Member States’ domestic policy choices have the potential to fall within derogation • Scope of EU law does not require legislative competence • Duty to act? • Concern about ‘federalising effect’ • E.g. Fransson C-617/10, 26 February 2013 – cf views of AG; see AG Sharpston in Zambrano; Case C-380/05 Centro Europa 7

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