Media freedom in times of crisis: growing concerns and unsettled issues in the EU

By Myriam Marino

Poland and Hungary, already protagonists of the dispute connected to the rule of law mechanism of the EU budget in the ending months of 2020, are once again at the center of a question pertaining to rule of law and democracy. 

More precisely, on Wednesday March 10th, 2021, a debate took place in the context of the plenary session of the European Parliament in relation to new potential risks of breaches of EU fundamental rights. This time, concerns were manifested with regard to the freedom and independence of the media and were directed towards three specific Member States: Hungary, Poland, and Slovenia.

Last year, the veto on the Recovery Fund was settled, enabling the aid package to proceed with a smooth and fast implementation. On the other hand, apprehension towards the status of media pluralism in the countries under scrutiny does not represent a novelty among MEPs. As a matter of fact, the last concrete attempt to manage the issue was in last November, when the fundamental role of freedom of expression and information within democracies was emphasized in the context of the European Parliament. Over the course of these discussions the alarming conditions of the media environment in a number of Member States emerged, and the focus was put on the effects of media centralization and censorship regarding the safety of journalists and on the work of independent media outlets. This debate eventually led to a resolution, adopted on November 25th, reiterating the European Parliament’s intention to promote media freedom and fight disinformation, encouraging Member States to stick to democratic standards. Furthermore, it is worth pointing out that both Poland and Hungary are subject to the procedures of Article 7(1) of the Treaty on European Union due to serious risks of violation of EU fundamental values. 

Nonetheless, one recent specific occurrence has acted as a triggering event and revived existing worries related to weakening media pluralism, namely the shutdown of the Hungarian radio station Klubrádió. While representing the latest development in terms of changes within the country’s media environment, this event is oftentimes represented as part of a long process that, since early 2010s, has progressively resulted in a rather extensive restructuring and centralization of the media market of the country. The official decision in court -taken in September 2020- in favor of a suspension of the activities of the radio station was the consequence of apparent recurrent violations of broadcasting rules, identified by the Hungarian Media Council, which eventually led to the denied renewal of the radio’s license.

As far as Poland is concerned, a similar re-definition of media ownership has recently been brought about by the acquisition of a prominent German newspaper chain from the national energy group PKN Orlen, with the objective to add a “Polish viewpoint” to it. Moreover, worries over Polish media freedom are nowadays predominantly related to the Government’s initiative to introduce a tax on advertising, justifying it as a means to support the health sector during the pandemic. The reaction to the mentioned measure was a national strike of Polish independent media outlets that took place on February 10th.

Finally, concerns on the Slovenian media sector are rising as a result of growing political interference both in the context of public and private outlets, enacted through manipulation and explicit attacks towards journalists, while simultaneously reducing funds to certain outlets.

Contextually to the debate that occurred on March 10th, a majority of the MEPs suggested severe measures to be taken in respect to the involved countries to avoid a deterioration of the situation. Among the suggested proposals the rule of law conditionality was once again called into play, with few MEPs asking for it to be immediately put into effect. If the circumstance of emergency related to the veto enacted by Hungary and Poland required for a fast solution to be reached, the stance adopted now shows a less flexible attitude towards the two countries. On the other hand, however, a number of MEPs perceived the concerns expressed as lacking objectivity and as being influenced by differing political viewpoints. 

Media freedom represents a fundamental principle to uphold within democracies. However, safeguarding this value becomes indispensable in times of crisis. The resolution adopted in November already stressed how a concentrated media environment can lead to increased disinformation and hate speech. Similar consequences, indeed, must be necessarily avoided, particularly in the course of a pandemic. Furthermore, both on that occasion and in the last plenary session of the European Parliament it was emphasized how political actors strongly leverage the health crisis to undermine democratic standards. Therefore, in similar circumstances, MEPs have oftentimes focused on the necessity to ensure that EU funds are not exploited to strengthen state control over the media and/or for pro-government content. Perhaps encouraging the investment of funds in favor of media pluralism and freedom of expression would be a better approach.

Fidesz quits the EPP: A new powershift in the European Parliament?

By Robin Vandendriessche

On Wednesday the 8th of March 2021, Hungarian Prime Minister Viktor Orbán delivered on his promise to quit the European People’s Party group (EPP Group) in the European Parliament after new rules were approved that would allow the center-right block to suspend or exclude members. The motion, clearly intended to deal with the block’s uncomfortable relationship for nearly a decade with Fidesz and its track of democratic backsliding, passed with 148 MEPs in favor and 28 against.

Victor Orbán immediately expressed his disappointment to see the EPP Group “paralyzed by inner administrative issues” and stated “that the EPP has finally become an extension of the European left”. Many EPP members and above all members of the other party groups welcomed this move with the latter criticizing that it had taken long enough when EU values had been clearly disregarded. And although the departure of Fidesz from mainstream European politics was long overdue there is little reason to be optimistic. As long as several member states refuse to stand up to Orbán in the Council, it will be difficult to stop Hungary’s authoritarian turn. At least now the line between the political groups committed to the rule of law and those with a different concept of the European values has become more visible. 

It remains to be seen if this departure has set the scene for a potential power-shift in the European Parliament. Firstly, the EPP Group, which is the largest group in the European Parliament, will see its seats reduced from 187 MEPs to 176. Secondly, there is still the question of what Fidesz will do. Will he attempt to create a new political movement or join another party group?

Orbán clearly stated that all types of proposals to renew European politics were being considered. Being outlawed by the mainstream right, he could be looking to create a new political movement that could secure Hungary’s turn to illiberalism, wrapped in a conservative and populist project. After all, EPP membership has been crucial in the past decade to shield Hungary’s process of democratic backsliding from a decisive European response. Talks with Poland’s PiS party and Italy’s Lega Nord and Fratelli d’Italia are already being conducted. But such initiatives are not new. In 2020 Orbán stated his intention to initiate a new political movement if the EPP was not able to change itself. In 2019, before the European elections, the Italian party Lega Nord tried to form a new right-wing alliance but failed to gather all right-wing parties. At that time, Orbán explicitly chose to remain in the EPP Group. And thus, it is highly questionable if such a new political movement would make any difference since it has already been tried a few times before. On top of that, the right-wing parties in the European Parliament are lacking coherence, making it unlikely for them to agree on a common agenda. There is for example considerable disagreement on foreign policy, Baltic parties see Russia as the real danger whereas the Italian or French parties have close ties with Moscow.

The European Conservatives and Reformists Group (ECR Group), which also consists of Poland’s ruling PiS party, would be a natural choice for Fidesz to join because it has shared a similar opinion in many of the decisions made in the European Parliament. Such a move would of course be enthusiastically welcomed by the ECR Group.  As Lega Nord wants to reposition itself as less eurosceptic, since it entered the Draghi government, it could consider a move to the ECR Group too. If Orbán  decides to follow this move, it would make ECR the third biggest group in Parliament thereby overtaking Renew Europe. The European liberals are very much aware of the impact of this scenario as one of their MEPs Sophie In’t Veld calls upon the Group to quickly adopt a strategy as this could trigger a reshuffle of the political landscape in the European Parliament. 

At the end of the day, a new and coherent alliance gathering all right-wing parties in the European Parliament which could have Orbán’s back seems unlikely for now. Fidesz could also join another party group but such a group can only exert power when united and bound by common goals and values. The former has not always been the case and even the latter are not always shared by all national members of the ECR Group or another group for that matter. However, this clear reinforcement of the eurosceptic right does not mean that the formation of significant majorities in the future will become any more likely.  

What France’s reaction to the CJEU ruling on data retention could mean for the EU’s future

By Valentina Alexandru

10 months after the German Federal Constitutional Court declared the CJEU ruling on the legality of the European Central Bank’s Public Sector Purchase Programme not binding in Germany, the European Union is faced with yet another threat to democracy and the rule of law, as the French Government requested the Council of State to disregard the EU ruling on national data retention rules. 

Data retention has been disputed for a few years now, having created a fracture between Governments regarding it as a prerequisite instrument in safeguarding national security on the one hand, and privacy activists who fear it is only a means to attain mass surveillance, on the other. In 2018, this dispute determined a coalition of associations to file a complaint against 17 Member States, France included, on the grounds that the latter contravened Union law. In line with its priority of fighting terrorism and organized crime, the Portuguese Presidency invited Member States to express their opinion on how the jurisprudence of the highest EU Court impacts data retention rules. 

On 6 October 2020, the CJEU issued two rulings, one addressed to the UK (Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others) and a joint one for France and Belgium (La Quadrature du Net and Others v Premier ministre and Others). The Court determined that the security laws through which the three States demand electronic communications services (ECS) providers to retain traffic and location data on a general and indiscriminate basis infringe EU law. 

In the ruling addressed to France, the Court held that when it comes to general and indiscriminate data retention from users for the purpose of preventing crimes and preserving national security, Union law prevails over domestic law. Nonetheless, the Court added that derogations to the judgement are possible in case of a serious menace to national security. If the threat is genuine and present or foreseeable, then strictly necessary data may be retained, but only for a limited period of time. 

This matter was previously brought before the Court in cases where the legality behind Governments imposing on ECS providers to pass on users’ data to public authorities was contested. Leading cases such as Tele2 Sverige or Watson and Others highlight the Court’s position on the disputed issue, pursuant to which Member States are prohibited from requiring providers to retain data generally and with no discrimination. The retention should instead be realised in a targeted and limited manner backed by safeguards. 

In the 6 October 2020 ruling, the Court sheds light on the content of the Directive on privacy and electronic communications, explaining that the EU legal instrument prevents Member States from enacting legislation that limits the rights and obligations laid down in said Directive, with emphasis on the obligation to shield confidentiality of communications and traffic data, except when the acts are in conformity with the general principles, as well as the fundamental rights enshrined in the Charter. 

Recently, the Council of State was asked by the French Government to disregard the EU ruling, the main argument being that the judgment is not in line with France’s constitutional identity. Moreover, France emphasizes that security is a domestic competence, which means that by ruling on the issue at hand the Court acts ultra vires. The same argument was used by the German Federal Constitutional Court when it held that the CJEU ruling is not binding within Germany. At that moment, a prompt response was issued by the European Commission, reaffirming the supremacy of EU law and the binding nature of CJEU rulings

Such positions of Member States could turn into a serious threat not only to the supremacy of Union law, but also to paramount values such as democracy and the rule of law. Coming from two of the founding members, this reaction has the potential to decrease the general confidence in the EU. While it is true that the European Union has evolved into a far greater project than what the founders have initially signed up for, France’s position might set a precedent that will empower those who have already been threatening democracy and the rule of law. Nevertheless, the EU is determined to counteract threats to the rule of law and has set in place a conditionality mechanism, according to which the EU funds will be conditioned by the respect for democracy and the rule of law. Moreover, in order to further solidify the rule of law, the EU has established a new supervisory mechanism through ‘the rule of law review cycle’ that results in a yearly report on the state of the rule of law in the Member States. 

On top of the increasing obstructive attitude of the MEPs, and of the decreasing general confidence in the European Union, the dispute on this matter might further the division within the EU. In a future filled with uncertainty, the only remaining certainty is that the EU will preserve the rule of law at all costs.