Speaking at last week’s Publishers’ Forum in Brussels, and in advance of tomorrow’s Council Working Group Meeting on ROME II (regulation on applicable law to non-contractual obligations) when Member States are likely also to receive long-awaited revised proposals from the Commission, Commissioner Reding voiced support for the position of media and journalists’ organisations, including the European Publishers Council (EPC),who are calling for the Commission and the Council to ensure that plaintiffs in defamation and privacy cases can only apply the law of the country where the media is principally directed and not, as per the current Commission text, wherever they choose.
The current Commission text completely ignores an amendment to Article 6 adopted by significant majority at First Reading in the European Parliament (see attached) which would establish that privacy and defamation cases would be judged "according to the applicable law of the country where the media is principally directed" or when this is impossible to determine, where the editorial decision is taken, for example in the case of international media. The EPC, along with other media and journalists’ organisations, fully supported this compromise amendment which provides legal certainty whilst also respecting the rights of the victim and the freedom of the press. As Commissioner Frattini prepares to sign off on a final set of revised proposals from the Commission, EPC and fellow media organisations are taking steps to brief all Commissioners of their concerns about the Commission’s legal competence to intervene in matters of editorial control and to call upon them to consider fully the proposal from the European Parliament.
EPC, the journalists and other media organisations are looking to Commissioner Reding in her role as media policy chief to intervene on their behalf when the College of Commissioners adopts revised proposals this coming week to make sure that anyone bringing a privacy or defamation case in the EU will be free to shop around from one Member State to the other seeking redress for local damages in multiple countries and according to different laws – according to where they think they will benefit most.
Along with the Commissioners’ meeting to adopt revised proposals, the next key meeting on this issue takes place at the Council Working Group meeting on 13 December – the last before the baton is passed to the Austrian Presidency who have already said they will give this matter priority.
The Council is also expected to ignore the European Parliament’s significant majority vote at First Reading on an amendment to Article 6.
Rome II is the draft regulation on applicable law to non-contractual obligations that would apply in cross border cases of defamation,violations of privacy and the right of reply. Under cover of a mere "technical simplification" of rules related to applicable law, the Commission is forcing direct application of the earlier Brussels I Regulation (and it’s article 5.3.) which already gives plaintiffs the option of choosing the jurisdiction. To mirror this option by automatically giving the plaintiff choice of law as well strikes at the heart of press freedom, going way beyond any "technical simplification". The EPC has been fighting instead to ensure that the law applied in such cross border cases should be closest to the point of editorial decision, thereby upholding press freedom and providing a balance of interests.
EPC Chairman, Francisco Pinto Balsemão said "In our view, the Commission’s proposal puts at risk the freedom of the press as protected under the European Convention and the European Charter of Fundamental Rights. We have informed Commissioners Frattini and Reding that any intervention in this field could have a direct impact on press freedom and on the editorial content of the various media in the European Union. So far our concerns remain unanswered".
EPC Executive Director Angela Mills Wade said: "The Commission has yet to show any evidence of single market necessity to justify its intervention in media content and the media itself believes that the proposals will in fact erect new barriers. Article 6 does not therefore overcome the especially high threshold that the EC treaties establish for EU intervention in media content."
The EPC believes that unless the Parliament’s democratically adopted amendment is accepted by the Member States, the media should be excluded from the scope of Rome II in order to uphold the freedom of expression in European media.
EPC Chairman, Francisco Pinto Balsemão explains: "The goal of this Regulation is supposedly to improve the forseeability of solutions regarding the applicable law to non-contractual obligations’. We are calling on the Commission to rethink its current proposal which favours the "law of the forum" as this dictates that a publisher, broadcaster or journalist will be at the constant threat of being sued under the law of various countries, despite having respected the law of their place of publication. This proposal will prevent media and journalists from publishing or broadcasting certain information because of the legal uncertainty which is an unacceptable limitation on the freedom of expression. Journalists and publishers cannot be expected to consider the laws of 25 different countries before going public with information and we question fundamentally the Commission’s legal competence to step into the waters of press freedom in this way. I’d like to recall Commission Reding’s clear statement from 2002 which unambiguously limits EU competence over the media to the proper functioning of the internal market. If the Commission remained true to their own internal market justification for this Regulation, they would follow the democratic vote of the European Parliament".
For more information, please contact Angela Mills Wade on Tel:+44 1865 310 732 or Heidi Lambert on Tel: +44 1245 476 265.
ROME II – Treaty competence
To establish a genuine European law-enforcement area, the Community,under Articles 61(c) and 65 of the Treaty establishing the European Community, is to adopt measures in the field of judicial cooperation in civil matters in so far as necessary for the proper functioning of the internal market. The Tampere European Council on 15 and 16 October 19991 acknowledged the mutual recognition principle as the cornerstone of judicial cooperation in the Union. It asked the Council and the Commission to adopt, by December 2000, a programme of measures to implement the mutual recognition principle.
This has been published in OJ at:
Visas, asylum, immigration and other policies related to free movement of persons
Article 61 (ex Article 73i)
In order to establish progressively an area of freedom, security and justice, the Council shall adopt:
(a) within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration,in accordance with the provisions of Article 62(2) and (3) and Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article 31(e) of the Treaty on European Union;
(b) other measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article 63;
(c) measures in the field of judicial cooperation in civil matters as provided for in Article 65;
(d) appropriate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;
(e) measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union.
Article 65 (ex Article 73m)
Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market,shall include:
(a) improving and simplifying:
- the system for cross-border service of judicial and extrajudicial documents;
- cooperation in the taking of evidence;
- the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings,if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
Article 67 (ex Article 73o)
1. During a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.
2. After this period of five years:
- the Council shall act on proposals from the Commission; the Commission shall examine any request made by a Member State that it submit a proposal to the Council;
- the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this Title to be governed by the procedure referred to in Article 251 and adapting the provisions relating to the powers of the Court of Justice.
3. By derogation from paragraphs 1 and 2, measures referred to in Article 62(2)(b) (i) and (iii) shall, from the entry into force of the Treaty of Amsterdam, be adopted by the Council acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.
4. By derogation from paragraph 2, measures referred to in Article 62(2)(b) (ii) and (iv) shall, after a period of five years following the entry into force of the Treaty of Amsterdam, be adopted by the Council acting in accordance with the procedure referred to in Article 251.