The European Union media regulation and the protection of media freedom in Member States. The case of Member States experiencing the rule of law crisis

The aim of the project is to establish what role European Union media law plays in protecting the value of media freedom in the Member States. This issue is of momentous importance in light of the wider crisis of respect for EU values within the Union. Although Article 2 of the Treaty on European Union, which sets out EU values, does not explicitly refer to media freedom, Article 11.2 of the Charter of Fundamental Rights of the European Union emphasises the importance of respecting media freedom and pluralism. The European Commission considers media freedom as one of the constituent values of the rule of law. In the last decade, media freedom has been systemically curtailed in some Member States. The European Union monitors this process, including through its annual Rule of Law Reports. However, the EU institutions, notably the Council and the European Commission, have made very limited use of available mechanisms to protect EU values to protect media freedom. These actions have been limited to referring to the media issue in the Article 7 procedure of the Treaty on European Union launched against Hungary in 2018, and to the European Commission's pursuit of infringement proceedings (Article 258 of the Treaty on the Functioning of the European Union) against Hungary for not renewing the licence of an independent news radio station.

In parallel, there has been an important change in the European Union regarding the regulation of media at EU level. Issues concerning public and private media have traditionally been the responsibility of the Member States – with a few exceptions, for example concerning audiovisual media services. On 14 March 2014, the European Parliament passed the Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU.

The regulation, known as the European Media Freedom Act, will be directly applicable in all Member States. It was introduced under the EU's internal market competence, but expresses the ambition to protect media freedom. The regulation imposes positive and negative obligations on Member States, including in key areas for media freedom in countries undergoing a wider erosion of the rule of law, such as the independence of media regulators, public media, public funding of media. However, the lack of new mechanisms to enforce these obligations raises doubts about the effectiveness of the new EU regulation in protecting media freedom in the EU.

This project will examine, firstly, how the EU understands the value of media freedom and what positive and negative obligations EU media law imposes on Member States. To this end, it will make a doctrinal analysis of EU media law.

Secondly, why the EU institutions, in particular the Council and the European Commission, have made limited use of mechanisms to protect EU values to protect media freedom in countries undergoing a rule of law crisis. For this purpose, current and former EU officials and staff of EU institutions will be interviewed.

Thirdly, the project will conduct a comparative study of in-depth case studies of two Member States, Poland and Hungary, to determine what factors determine the fulfilment of obligations under EU media law and respect for the EU value of media freedom. To this end, the legal and institutional conditions, the practice of applying the law, unwritten norms and informal practices will be examined. Interviews will be conducted with representatives of state authorities and other media stakeholders, including media law expert and representatives of civil society organisations in Hungary and Poland. The project will use a methodological approach that combines classical legal science methods: doctrinal and comparative methods, complemented by the 'law in context' method and qualitative social science methods (qualitative interviews, in-depth case studies). The results of the project will enrich the academic literature in the field of EU media law, the sub-discipline of rule of law research in the European Union on the response of EU institutions to violations of EU values in Member States, and the literature on compliance with EU law and values in Member States.