On 27 September 2023, ARTICLE 19, together with a diverse coalition of organisations representing civil society, media, and journalists, organised a briefing to discuss the European Media Freedom Act – ahead of the crucial vote in the European Parliament scheduled for the first week of October.
ARTICLE 19’s intervention focused on Article 21, and the assessment of media market concentration.
In the past, ARTICLE 19 has expressed concerns about the impact that media mergers can have on media pluralism and independence in the EU. Article 21 is an important step in addressing this issue. It will create a more harmonised regulatory environment for media mergers across the EU and, crucially, introduce a specific public interest test as part of merger assessment. The test will take into account media pluralism, editorial independence and sustainability of the media, all of which are key for democracy.
Currently, about half of the EU member states do not consider the public interest element when assessing media mergers – and only a handful of those refer specifically to media plurality. This fragmentation harms the internal market, the business models of media outlets and EU citizens.
Harmonisation of rules under Article 21 will increase legal certainty for all actors, create a level playing field across member states and strengthen the EU internal market for media services. With harmonised regulatory environments, the EU citizens will also be more likely to have access to similar quality of media services, regardless of where they are in the EU.
Concentration of media ownership has always presented a great challenge for media plurality and independence: as the number of diverse and independent outlets decreases, media capture becomes more likely. Traditional merger rules, which focus on impact on competition and consumer welfare, are not capable of adequately protecting this diversity and independence. This is why the media pluralism test is absolutely fundamental for the protection of the media sector.
ARTICLE 19 position ahead of the vote
The current text of Article 21, presented in the CULT report makes significant improvements on the original proposal by the European Commission.
Importantly, it expands the definitions, defining media market concentration as concentration involving ‘at least one party in the media value chain’. However, ARTICLE 19 recommends that the definition should encompass the entire value chain. Many mergers that take place outside of the media sector, for instance in advertising or distribution, can have a profound impact on media plurality and sustainability,
It is also important that all media mergers across the EU are scrutinised, and that Article 21 test apply in all cases, including for smaller, local players – as those mergers can have equal, if not larger, adverse effects on plurality and independence as the big outlets.
Further guidelines for assessing the impact of media merger are needed to make sure the 3 criteria (impact of concentration on media pluralism, safeguards for editorial independence and economic sustainability of the acquiring / acquired entity absent a concentration) are well understood and apply consistently across member states. Further guidelines should also be provided on how to prioritise and solve issues where the criteria come into conflict with each other. Those should be issued by the new European Board for Media Services (replacing ERGA), which will hold the technical expertise, and not the European Commission.
The media plurality test will require time, experimentation and learning to work properly. As regulators take on its implementation, it is important that the process is as transparent as possible, including for EU citizens. As part of this, ARTICLE 19 would urge the national regulatory authorities to conduct an ex-post evaluation of concentrations affecting the media market that could have a significant impact on media pluralism and editorial independence – so that consequences of merger decisions can be assessed properly.