ERGA

European Commission proposal for a European regulation on media freedom (EMFA): ERGA's position

Published on 02 December 2022

Regulation

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On November 25, 2022, ERGA adopted its position on the European Commission's proposal for a European Media Freedom Act (EMFA).

European Commission's proposal for a European Regulation on Freedom of the Media (EMFA): ERGA's position.
Press release.

ERGA's general remarks on the EMFA proposal

The European Regulators Group for Audiovisual Media Services (ERGA) welcomes the proposed regulation establishing a common framework for media services in the internal market (EMFA - European Media Freedom Act) and fully endorses its overriding objectives of protecting media freedom, plurality and independence in the European Union (EU). Access to an independent, plurality-based media supply is crucial if European citizens are to form informed opinions and participate fully in democratic debate.

While the protection of the EU's democratic values goes beyond the "internal market" approach followed by the Commission, ERGA recognizes that the proper functioning of the internal market goes hand in hand with the promotion of an environment conducive to the sustainable development of a plurality and variety of European media. ERGA and its members focus primarily on the above-mentioned European values.

ERGA welcomes the flexible and principled approach taken by the Commission in its proposal (for most of the schemes), which introduces a reasonable level of minimum harmonization, while noting that some definitions and provisions should be further clarified in order to strengthen legal certainty and the overall robustness of the legal framework. The possibility for Member States to adopt more detailed rules on a number of aspects is also welcome. Indeed, it seems essential to EMFA to seek an appropriate balance between principles and application, harmonized and national approaches, and not to level down existing and well-functioning national schemes, which may already include more demanding rules.

Furthermore, ERGA welcomes the Commission's notice as a useful contribution to the promotion of internal safeguards for editorial independence and transparency of ownership in the media sector.

With regard to the legal framework, ERGA wishes to stress that the interaction of the EMFA, which will require national implementing measures, with existing European instruments (such as the AVMS Directive and the DSA, to name but the most important) and national transposition or implementation measures will require further analysis and potentially some clarification in order to ensure the applicability and legal certainty of the proposed manager as a whole.

Regarding the scope of the EMFA, ERGA welcomes the fact that all types of media services, offline and online, are covered, including all audiovisual media services, but also radio broadcasts and audio podcasts.

Given the sensitivity of issues affecting the press sector, as well as specific national (including constitutional) circumstances, ERGA wishes to state explicitly and unambiguously that it is neither its vocation nor its intention to regulate the press sector. In this sense, ERGA understands that EMFA does not make provision for regulation of the written press as such by the future European Committee for Media Services ("the Committee"), as the latter is not given any role under Chapter II of the proposal. This point should ideally be clarified more explicitly, at least in the recitals.

In addition, ERGA welcomes EMFA's intention to cover two crucial issues for the integrity of media and information services in the EU, the importance of which has already been clearly underlined in the co-legislators' recent discussions on the DSA: the diffusion of third-country media services and the treatment of media content by very large online platforms (VLOPs). ERGA summons a clarification and strengthening of the provisions relating to third-country media services in order to address more effectively and appropriately the different scenarios for the diffusion of third-country content in the EU. Similarly, provisions on the treatment of media coverage by very large online platforms should be improved to strengthen their useful effect. ERGA is making concrete proposals in this direction with regard to these two important aspects.

ERGA also welcomes the ambition of the proposal, which covers a wide range of relevant topics. In particular, ERGA welcomes the provisions on the rights and obligations of media service providers, the protection of journalists, public service media, audience measurement and the assessment of media concentration, which are designed as minimum norms and for which Member States may adopt more detailed provisions.

ERGA welcomes the proposal to transform it into a European Committee for Media Services, with additional tasks and responsibilities under the new legal manager. Eight years after ERGA's creation, its members share the conviction that strengthening coordination and collective deliberation between national regulatory authorities (NRAs), whose independence should not be affected by this act, can bring significant added value to the application of European media regulation. In this respect, the proposal to institutionalize theMemorandum of Understanding (MoU) that ERGA has adopted on a voluntary basis is welcome. While this institutionalization in the EMFA is likely to strengthen the legal certainty, predictability and robustness of cross-border structured regulatory cooperation, its concrete modalities should be defined more precisely by the Committee itself in its rules of procedure.

In this context, the EMFA arrangements should provide the maximum guarantees of independence for the operation and decision-making of the Committee, as a new collective body of independent authorities charged with implementing arrangements for independent and pluralistic media. With this in mind, ERGA wishes to summon attention to the weaknesses of the scheme as currently conceived in the EMFA proposal. Its main concerns relate to the status of the Committee and its effective independence from the European Commission.

The Committee's initial status as a group of experts browsed by the Commission no longer seems appropriate, and should be developed in view of the sensitivity and range of issues to be covered. EMFA admits to the facts and establishes the Committee as an independent advisory body. However, the Committee's effective independence from the Commission and legitimacy are all the more important in view of its role and tasks within the EMFA manager. In this context, the Committee must do more than assist the Commission: in addition to cases where the Commission demands its intervention, the possibility for the Committee to act on its own initiative must be explicitly recognized. It is equally important that the Committee should not have to demand the Commission's agreement when drafting and adopting its acts and opinions: the schemes set out in the proposal should be amended accordingly, to be compatible with the proclaimed - and necessary - independence of the Committee.

The Committee's effective independence will also come under the control of the organizational structure adopted. ERGA recommends setting up a secretariat operating separately from the Commission (along the lines of existing structures), which by far seems to be the safest configuration in this respect. The Committee should also be able to independently manage its own internal affairs, such as drawing up its rules of procedure, work program and key deliverables, and deciding on invitations to its meetings.

At the same time, while EMFA already summons adequate resources and effective autonomy for independent regulatory authorities at national level, ERGA considers that these provisions should be further strengthened to ensure that resources are commensurate with missions and tasks, which are new for many authorities. This is a necessary precondition to enable national regulatory authorities (NRAs) to exercise their role within the Committee, and to be able to cope with both the Committee's extended responsibilities and their own, at national level. Indeed, with the expanded remit of the new Committee and the new cooperation proceedings structured under EMFA, the number of requests for information and cooperation addressed to the NRAs is bound to increase. As a result, proportionately greater financial, human and technical resources are required to ensure that NRAs, particularly those of modest size or currently under-resourced, are able to deal with all demands in a timely manner and contribute fully to the successful implementation of EMFA. Furthermore, as NRAs have a crucial role to play in guaranteeing media independence, which is at the heart of EMFA, it is vitally important to ensure that they are fully independent and effectively autonomous in their role as guardians of the values of media regulation.

In what follows, ERGA sets out more specific analyses and proposals aimed at consolidating the robustness, proportionality and enforceability of EMFA. ERGA intends to continue its detailed analysis of the proposed provisions and is ready to continue its contribution to the forthcoming debates with a view to the adoption of the proposal.

The EMFA proposal - ERGA's specific remarks

CHAPTER I - GENERAL PROVISIONS

Article 2 - DEFINITIONS

In order to reflect the ambition aimed at and required by EMFA, and to promote legal certainty, ERGA wishes to make several suggestions concerning the definitions given by EMFA:

A. The definition of "media services" lists Articles 56 and 57 of the Treaty on the Functioning of the European Union and the fact that the service is "normally provided for remuneration". It would be desirable to extend this definition in order to ensure that non-commercial media services - which should be subject to the provisions of EMFA as they are in competition with commercial media - also fall within the scope of this definition and of this Regulation.

B. With regard to the definition of "video-sharing platform service" (Article 2, paragraph 11), in the light of Recital 8 and in particular the last sentence of the recital ("Consequently, such an entity could qualify as both a video-sharing platform provider or a very large online platform provider and a media service provider"), it should be made clear (at least in a recital) that, where a provider of a video sharing platform (VSP) or a very large online platform (VLOP) exercises editorial control over one or more parts of its service, the qualification of "media service provider" applies only to that activity and not to the entire service provision activity. ERGA also suggests that the qualification as "media service provider" of one or more parts of a PPV/VLOP should not be left to the discretion of its suppliers. Such qualification should be based on objective criteria referring to the definitions provided by the AVMS Directive.

C. The category of very large online search engines as defined in the DSA should be within the scope of definitions in the same way as that of very large online platforms - VLOPs (article 2 (10)). Indeed, it seems necessary to include these services, which play an important role in access to online media content and should therefore be subject to the same, or at least similar, obligations as very large online platforms in accordance with articles 17 and 18 of the EMFA.

D. The definition of "state advertising" (Article 2, paragraph 15) by state-owned enterprises or other state-controlled entities should ideally be limited to entities in which the state is involved in day-to-day operations and exercises influence or control over advertising strategies in terms of spending and ad placement. This would make it possible to limit the scope of reporting and control activities under Article 24 to what is strictly necessary and proportionate to achieve the objective pursued. Conversely, consideration should be given to clarifying that the threshold of one million inhabitants applies only to local authorities, so that the provision is effectively applicable to Member States with fewer than one million inhabitants.

E. The following terms and expressions should be clarified in the relevant recitals (and/or, where appropriate, in the list of definitions in Article 2), in order to ensure greater clarity and harmonized application of the EMFA:

"News and current affairs content" (article.6);
"Media pluralism" and "Significant influence on media plurality and editorial independence" (article 21);
"Disinformation (A reference in the EMFA could be made to the 2022 Code of Practice on Disinformation based on the definition of disinformation in the European Action Plan for Democracy: "Disinformation is false or misleading content that is shown with the intention of misleading or obtaining economic or political gain and may cause public harm"), information manipulation and foreign interference ( A list in EMFA could be made to the EU toolkit on foreign information manipulation and interference prepared by the EEAS, according to which foreign information manipulation and interference is "a pattern of generally non-illegal behavior that threatens or has the potential to negatively impact political values, proceedings and processes. These activities are manipulative in nature and are carried out in an intentional and coordinated manner. The actors of such activity may be state or non-state actors, including their proxies within and outside their own territory")" (articles 18 and 25);
"Reliable information" (recitals 11, 13 & 31) and "reliable media content" (recital 16);
"Considerable influence on the formation of public opinion" (Recital 39).

CHAPTER II - RIGHTS AND OBLIGATIONS OF MEDIA SERVICE PROVIDERS AND RECIPIENTS

Article 4 - RIGHTS OF MEDIA SERVICE PROVIDERS

ERGA fully supports the aims of this article: the protection of media service providers and, in particular, journalists and their sources from any threat to their independence and safety is one of the cornerstones of free and independent media.

F. It is important to avoid any doubt as to the purpose and effect of the provision relating to freedom from interference by NRAs with the editorial policies and decisions of media service providers (Article 4.2(a)). ERGA therefore suggests clarifying, potentially in a recital, that the normal exercise of their powers by NRAs on the basis of legal provisions pursuing general interest objectives (e.g., demanding the diffusion of public service announcements on public health issues, discussing with TV or radio service providers voluntary charters aimed at general public awareness raising, etc.) does not fall within the scope of this prohibition.

G. In the same spirit of clarification, while noting the reference to "those who exercise their employment in atypical forms, such as freelancers" in Recital 16, ERGA suggests explicitly listing "journalists, including freelance journalists" not only in the Recitals but also in Article 4, 2(b) and (c) when mentioning the protections applicable to employees of media service providers.

Article 5 - PUBLIC SERVICE MEDIA PROVIDERS

In accordance with Protocol 29 on the system of public radio broadcasting in the Member States of the TEU and the TFEU (the "Amsterdam Protocol"), the organization and definition of public service missions and the financing of public service media fall within the competence of the Member States. The regulation of public service media therefore varies greatly from one Member State to another, and is generally a sensitive issue.

H. In this context, ERGA welcomes the general principles-based approach proposed in EMFA for public service media providers, as it introduces reasonable and proportionate requirements for these very special players, given their public mission and their impact on the opinion-forming of European citizens. Since the EMFA must not deal with or interfere with the missions of public service media, ERGA considers these provisions to be adequate.

Article 6 - OBLIGATIONS OF MEDIA SERVICE PROVIDERS PRODUCING INFORMATION AND NEWS CONTENT

The ERGA, while noting that it would have no role to play in the application of this article, wishes to emphasize that journalistic and editorial independence is a fundamental principle, which must be pursued and preserved in all circumstances, and as such, it is entirely appropriate that it should be covered by the EMFA. Indeed, it is of the utmost importance that journalists are protected from any undue pressure regarding the editorial content they propose.

I. ERGA welcomes the provision protecting the editorial independence of the media. However, further clarification, beyond recitals 20 and 21, would be welcome regarding the distinction between "individual editorial decisions" - which must be free from influence and freely taken - and the overall "editorial line", which could be agreed between media service owners and editors-in-chief.

CHAPTER III - A FRAMEWORK FOR REGULATORY COOPERATION AND A WELL-FUNCTIONING INTERNAL MARKET FOR MEDIA SERVICES

SECTION 1 - INDEPENDENT MEDIA AUTHORITIES

Article 7 - NATIONAL REGULATORY AUTHORITIES OR BODIES

ERGA welcomes the fact that EMFA's proposal relies on the network of European regulators for the implementation of certain parts of the text (Chapter III). ERGA notes that EMFA relies on Article 30 of the AVMS Directive, including with regard to the independence requirements to which media regulators should be subject, such as the necessary independence from public and private influences. ERGA welcomes the fact that EMFA makes provision for NRAs to have appropriate powers of investigation, including to respond to requests for information.

J. ERGA also notes that EMFA repeats the requirement for adequate financial, human and technical resources for NRAs already formulated in the AVMS Directive. However, following the (almost) finalized transposition of this directive across the EU, it appears that this requirement under Article 30 of the directive has not necessarily led to increased and sufficient resources for all NRAs despite a clear increase in skills, tasks and workload. Given the significant number of new missions and tasks for the European Media Services Committee, and therefore for NRAs, it is crucial that EMFA makes provision for stronger and more restrictive arrangements for Member States to ensure an effectively appropriate level of resources to enable NRAs to carry out all these new missions. Furthermore, a recital to this effect could give examples of possible sources of funding for NRAs (e.g. spectrum or digital dividend auctions, a levy on regulated entities, etc.).

EMFA should also strengthen the guarantees of Article 30 of the AVMS Directive (both in its Article 7 and in the corresponding recitals) on the requirements necessary for NRAs to guarantee their effective independence, including full operational autonomy to manage their financial and human resources.

SECTION 2 - EUROPEAN COMMITTEE FOR MEDIA SERVICES

Article 9 - INDEPENDENCE OF THE COMMITTEE

ERGA welcomes the central role made provision for by the Commission for the Committee in the EMFA with regard to the functioning of the internal market, the strengthening of EU fundamental rights through the media sector and the promotion of effective media freedom and plurality. In its response to EMFA's public consultation, ERGA stressed the crucial importance of several preconditions:

guaranteeing ERGA's effective independence from all bodies and institutions, including the European Commission, by establishing it under an appropriate new statute and ensuring that its staff are not accountable to or directly employed by the Commission;
strengthening ERGA's own resources, both financial and human;
strengthening guarantees that sufficient resources are provided at national level for NRAs to enable them to exercise their role within the ERGA and to be able to cope with the ERGA's extended responsibilities (although the AVMS Directive already sets the rule, it is necessary to better ensure its effectiveness - see above concerning Article 7);
adapt ERGA's governance to its new status and missions. Here again, the European text should only lay down the basic rules, leaving ERGA room for manoeuvre to adopt its own detailed rules of proceedings, within the general managerial framework set by EMFA.

K. These basic but fundamental prerequisites are unfortunately not fulfilled in the EMFA proposal. While EMFA strengthens the role of ERGA (in the form of the Committee) as well as its secretariat, the independence of the Committee formulated in article 9 is contradicted in practice by several provisions contained in the following articles on the internal functioning of the Committee, the secretariat and the tasks of the Committee. The effective independence of the Committee, made up of national media regulators - who are de facto independent of private and public influences at national level - is essential to ensure the proper application of the regulation. ERGA therefore urges the co-legislators to ensure that the wording of Article 9 fully reflects the independence of the Committee and the national regulatory authorities it intends to guarantee, and preserves this independence vis-à-vis any institution, including the European Commission (see below, Articles 11 and 12).

Article 10 - STRUCTURE OF THE COMMITTEE

This provision must be consistent with article 9 on the Committee's independence. Several amendments should be introduced to this effect:

L. The Committee should be able to decide autonomously on its internal functioning, without the need for agreement or coordination with the Commission (rules of procedure, work program, main deliverables, invitation of experts to meetings).

M. The two-year term of office envisaged for the Chairman, while a guarantee of stability and sound medium-term planning, could be too long and require substantial resources. In particular, it could prevent smaller regulators from becoming chairman. ERGA suggests that, rather than being laid down in the regulations, the term of office of the Chairman should be adopted by the Committee in its rules of procedure.

Article 11 - COMMITTEE SECRETARIAT

Comparing the current resources of the ERGA secretariat with what EMFA's proposal makes provision for the Committee secretariat, ERGA notes positively the increase in resources that will be devoted to administrative support as well as to contributing to the Committee's tasks. However, ERGA wishes to highlight the following crucial points concerning the Committee secretariat:

N. It is difficult to achieve real independence for the Committee with a secretariat that is provided by and reports to the Commission. By far the best solution would be to set up a fully independent structure based on the network of national media regulators, and to provide it with adequate resources (like, for example, the BEREC Office for the telecommunications sector).

O. Under the provisions of the ERGA, the Committee's new, broader remit (in terms of subjects covered and tasks, including the drafting of opinions on these new subjects), it is essential that the Committee be backed up by a solid secretariat, capable of supporting not only the activity of the Committee itself, but also of providing mutualized support to the NRAs. The organization proposed in the EMFA does not appear to be sufficient in this respect. Hence the importance of significantly greater resources for the Committee, but also at national level for the NRAs, to enable them to carry out their new tasks and contribute effectively to the Committee's missions.

Article 12 - TASKS OF THE COMMITTEE

ERGA welcomes the scope of the new missions and tasks proposed by the European Commission, and the central role that the newly created European Committee for Media Services will play in the governance and supervision of EMFA. ERGA is ready to transform itself into a Media Committee and to carry out these important new tasks for the promotion of media freedom and plurality in the EU. P. However, as stated in Article 9 of the EMFA proposal, the Committee is intended to be an independent body and should therefore have the capacity to carry out its various tasks with the necessary autonomy. It is therefore inappropriate for the EMFA proposal to make provision solely or mainly for the Committee's tasks to be carried out "in agreement with" or "at the request of the Commission". It is not acceptable that a group of national media regulators, who at national level act completely independently of any public or private influence, should operate only in response to requests from, or with the agreement of, the Commission. It is therefore of the utmost importance that the European Committee for Media Services, as a truly independent body, should always be able to act on its own initiative and adopt documents without having to demand any external approval. ERGA therefore proposes that Article 12 be amended as follows: - references to "at the request of the Commission" should be replaced by "on its own initiative or at the request of the Commission"; - references to "in agreement with the Commission" should be deleted.

SECTION 3 - REGULATORY COOPERATION AND CONVERGENCE

Article 13 - STRUCTURED COOPERATION

In 2020, ERGA adopted a Memorandum of Understanding (MoU) containing common principles on how to ensure cross-border application of the rules on audiovisual media services and video-sharing platforms, which go beyond the provisions of the AVMS Directive. In practice, the MoU creates a common manager in which ERGA members assist each other and exchange information with a view to more effective application of the rules and core values of the AVMS Directive, particularly in cross-border cases.

Q. This EMFA provision institutionalizes the ERGA Memorandum of Understanding and broadens its scope by ensuring the participation of all ERGA members. It also has the advantage of providing greater legal certainty, predictability and robustness by making cooperation more substantial.

However, ERGA advocates that the EMFA should include only the general principles and objectives of the MoU, and leave the definition of details and modalities to the future Committee and its members, so that the scheme is better adapted to operational needs and remains relevant over time. ERGA therefore considers that it would be more appropriate to define the details of the new cooperation scheme (such as, for example, the number of calendar days for processing requests) in the Committee's rules of procedure, for example, which the Committee will itself adopt.

R. Here again, the provision of appropriate resources and clear legal mandates for regulators, at both European and national level, is crucial to enable them to participate and contribute adequately and meaningfully to this regulatory cooperation, particularly when it comes to the smaller and relatively under-resourced regulators.

Article 14 - REQUESTS FOR MONITORING OF COMPLIANCE WITH THE OBLIGATIONS OF VIDEO SHARING PLATFORMS (VSPs)

This provision is also based, to a certain extent, on the current ERGA Memorandum of Understanding. Its institutionalization in the EMFA is welcome: PPVs are by their very nature cross-border in most cases and, consequently, strengthening cross-border regulatory cooperation is highly relevant and necessary. Moreover, such a procedure is appropriate insofar as it addresses the concerns of the country of destination without undermining the country-of-origin principle, as well as strengthening the effectiveness of the obligations specifically applicable to video-sharing platforms arising from Article 28b of the AVMS Directive.

S. However, here again, ERGA considers that it would be more appropriate for EMFA to include only principles and broad objectives, and to leave the definition of details and modalities to the future Committee. ERGA therefore suggests that the details of the new cooperation scheme be made provision for, for example, in the rules of procedure of the Media Services Committee, which the latter will be called upon to adopt.

While the proceedings introduce a useful mechanism for submitting a case to the Committee for mediation in the event of disagreement between the requesting authority and the authority seized, the impact of the provision, as proposed, could be limited in practice if the authority seized only informs of the measures planned (and not taken), as the possibility of submitting a case to the Committee for mediation, in accordance with article 14, paragraph 3, is only available in the event of disagreement over the measures taken.

T. Without prejudice to the country-of-origin principle and the independence of NRAs, ERGA suggests amending article 14, paragraph 3, to go beyond simple action planning and oblige the authority seized to take action and report on it, or to justify why no action has been taken.

Article 16 - MEDIA SERVICE PROVIDERS OUTSIDE THE UNION

As stated in ERGA's response to the public consultation on EMFA, the issue of cross-border cooperation in the field of media channels and services under the influence or control of third countries - which has repeatedly raised problems of consistency and coordination - needs to be addressed insofar as such media can cause serious damage in terms of disinformation, state propaganda, incitement to hatred and violence and the destabilization of European democracies. This is of crucial importance at a time of growing international geopolitical tensions and conflicts, including with the EU's neighboring countries.

With regard to these non-European channels and media services, ERGA therefore advocates that EMFA should make provision for a more systematic exchange of information, and explore the possibility of introducing a mechanism for mutual recognition of decisions (subject to their compatibility with EU and national law), as well as mutual assistance in monitoring these services. Over the past few months, ERGA has been exploring the various challenges facing EU media regulators in the light of actual disinformation campaigns run by media services from outside the EU. This is all the more important in a context where legal tools are limited to act individually and in coordination with other regulators.

ERGA therefore welcomes EMFA's proposal, which includes specific provisions to address these challenges. In light of ERGA's recent discussions on this issue, ERGA believes that Article 16 should be improved, clarified and strengthened in order to provide effective solutions to the problems encountered:

U. This article (from its very title) only applies to media service providers that are accessible in the EU without having an establishment in any of the EU member states. This case presents obvious challenges in terms of territorial competence, and therefore in terms of the means available to media regulators to meet them. However, this provision should cover a wider range of problematic media service providers who are effectively under the influence or control of third-country authorities, and in particular those who have an establishment in the EU according to the various criteria defined by Article 2 of the AVMS Directive.

V. The wording "control which third countries may exercise over them" should be clarified in order to provide greater legal certainty as to the concrete scope of the provision.

W. The Committee's coordination of national measures should be better circumscribed in order to limit the Committee's involvement in any national measures against media providers under the influence or control of third countries. While noting that the Committee's opinion on coordination would in any case require a two-thirds majority of its members, it could therefore be envisaged that the Committee only becomes involved in coordination when the issue is raised by a certain number of national regulatory authorities (more than one - to be defined by the Committee in its rules of procedure). This would avoid the Committee being seized with cases of a limited or non-existent cross-border nature.

X. As stated in the Charter of Fundamental Rights and other international legal texts, freedom of expression is an essential value of democratic societies. Consequently, media bans must be a measure of last resort, subject to appropriate legal proceedings and duly justified and necessary. This provision is supposed to be triggered only in the event of a "serious and grave risk of harm to public security and defense". As the notion of "public security" may be subject to divergent, sometimes narrow, interpretations, consideration should be given to clarifying it (e.g. in a recital) and/or extending the conditions for triggering the provision also to exceptional circumstances linked to a serious risk to public health (so as to bring it into line with the crisis response mechanism provided for by the DSA), as well as potentially to other risks mentioned in the AVMS Directive, such as incitement to hatred and the intention or call to commit a terrorist attack.

Y. A one-size-fits-all solution for cooperation between regulators may not be an appropriate approach as the issues are very different depending on the problem encountered and the nature of the third-country media service provider that is considered problematic. Therefore, and without prejudice to the competences and ability of Member States and NRAs to regulate media service providers, concrete and specific solutions as well as clear legal proceedings and mandates should be proposed and further elaborated for the following aspects in the framework of regulatory cooperation at EU level:

third-country media with an establishment in one of the EU member states (irrespective of the means of distribution);
third-country media shown by satellite (and for which EU jurisdiction is established either on the basis of the location of the uplink, or on the basis of the nationality of the satellite capacity), taking into account difficulties concerning the implementation of technical criteria for the identification of the competent Member State;
online distribution (websites and social media) of problematic media content, regardless of the establishment of the media provider;
third-country channels shown to or accessible from the EU, but which fall within the competence of no member state (extra-EU satellites and uplinks, online distribution, etc.).

Z. With regard to media providers established in the EU (in accordance with Article 2 of the AVMS Directive), the following approach could be provided for in the EMFA in order to mobilize the regulator of the country of establishment: where a Member State or NRA identifies a serious infringement of the law by a foreign media service provider (in accordance with Articles 3(2), 3(3) or 6(1) of the AVMS Directive), it should be able to request the territorially competent authority to take appropriate action, provided that this request is supported by a number of national regulatory authorities (more than one - to be defined by the Committee in its rules of procedure).

AA. In order to solve or prevent problems related to third-country media, the issue of satellite competence criteria should also be addressed as one of the main challenges, particularly given the volatile nature of uplink location and the difficulty of identifying the location of uplinks. The relevant provisions of the AVMS Directive should therefore be amended in the future to address these issues, which seriously undermine the effectiveness of the Community's scheme as regards third-country media service providers.

BB. In order to ensure the effective applicability of this provision, Member States should be invited to reflect it in national law so that NRAs have the opportunity to take action on the basis of measures taken by other NRAs and the opinion of the Committee.

CC. This provision should be further developed with regard to certain common basic criteria for assessing problematic services (content, ownership, lack of editorial independence from the state, etc.), including with regard to entry to the EU market. This would facilitate mutual recognition of decisions (subject to their compatibility with Community and national law) and strengthening cooperation where justified.

SECTION 4 - PROVISION OF MEDIA SERVICES IN THE DIGITAL ENVIRONMENT

Articles 17 and 18 - MEDIA CONTENT ON VLOPs AND STRUCTURED DIALOGUE

ERGA welcomes the inclusion of specific media obligations for the online environment, in addition to the DSA. This is a crucial issue, which needs to be addressed in order to preserve and foster media plurality by ensuring that media service providers are not treated like any other content providers on the very large online platforms.

ERGA has already highlighted this crucial aspect in its position on the DSA, and would therefore like EMFA, as lex specialis for media-related issues, to address this important question.

ERGA welcomes the establishment of a structured dialogue between online platform providers and media service providers under the auspices of the Committee. While noting positively that all media service providers publishing online content (audiovisual and/or audio media service providers as well as news publishers) will be invited to and can benefit from this structured dialogue, ERGA wishes to emphasize that this arrangement does not imply any regulatory role on the part of the Committee vis-à-vis news publishers, but a facilitating role for a constructive dialogue between the media and online platforms, with a view to achieving a more appropriate balance for the benefit of media service providers.

In what follows, ERGA presents a number of considerations and proposals aimed at making this provision as effective as possible.

DD. A number of limitations to this provision could be reconsidered, based on the following issues and concerns:

the actual impact of Article 17(2) could be relatively limited, as it will only be triggered in cases that are not linked to systemic risks, which the DSA defines very broadly;
Recital 33 specifies that VLOPs will have the power not to accept self-declarations made by media service providers on their ability to meet certain requirements, where they consider that these conditions are not met. ERGA recognizes the need to prevent the potential abuse of a self-declaration scheme to fight misinformation, and welcomes the Commission's intention to publish a set of guidelines in this area. Nevertheless, in practice this means that VLOPs will have discretionary powers in assessing the integrity and reliability of media service providers. Consequently, it is questionable whether there is sufficient guarantee that the media will actually benefit from the protection proposed here.

EE. The scope of this provision should be extended: (i) to very large online search engines in order to encompass these relevant players (e.g. the role of Google News in providing media content in Article 17) ; (ii) potentially, to platforms other than VLOPs, for example by setting a threshold at Member State level (which could be the number of active users of a platform or search engines corresponding to 10% of a Member State's population; players would be identified on this basis by the regulator) in order to identify other platforms that play an important role in a given Member State.

FF. In addition, certain provisions could be strengthened, in particular to improve monitoring of this obligation and increase the responsibility of VLOPs:

Article 17(2) lists "suspension" of services, whereas Article 17(4) lists "restrictions or suspensions", which seems inconsistent. ERGA therefore suggests that article 17(2) be extended to cover restrictions on services as well;
it is crucial to ensure consistency and non-arbitrary treatment of media publishers by the various VLOPs, particularly as regards acceptance of declarations;
the possibility of introducing an external complaints scheme for status rejection should be considered;
the cooperation and transparency of VLOPs (and any other platforms falling within the scope) should be further guaranteed by these schemes. To this end, consideration could be given to introducing an obligation for these players to provide the Committee, at its reasoned request, with information and data relevant to the monitoring of articles 17 and 18;
the text could also specify what happens if an amicable solution is not found. This would help to further reduce the discretionary power of VLOPs (and any other platforms falling within the scope), which seem to have a fairly wide autonomy to decide to restrict or suspend the provision of their services. In the same vein, the possibility of imposing legal sanctions in the event that VLOPs (or any other platform falling within the scope) fail to comply with this scheme could be explored, in particular to prioritize complaints from "recognized media" ;
this new policy should be reflected by VLOPs (and any other platforms falling within the scope, as suggested by ERGA in point EE) in their general terms and conditions;
the Commission should take account of the Committee's report from the structured dialogue in its assessment of the risks associated with DSA.

GG. Finally, a few clarifications would be welcome:

does suspension or restriction by the platform imply suspension or restriction of individual content, of the media service provider's entire account, or of all services provided by the intermediary for a given content (and thus potentially demotion, demonetization, deactivation of access or deletion of content)?
what is to be considered a "frequent" restriction on media content?
for the sake of legal certainty, the notion of "regulatory requirements", to which the media should be subject in order to benefit from this provision, should be more precisely defined.

Article 19 - CUSTOMIZATION OF AUDIOVISUAL MEDIA SUPPLIES

ERGA welcomes EMFA's proposal to enable users to easily change the default settings on devices providing access to audiovisual media supplies. ERGA notes that this measure could in practice provide an even stronger incentive for media outlets to demand service of general interest status (in accordance with Article 7a of the AVMS Directive) in the case of those Member States which have decided to implement this provision of the AVMS Directive.

That said, ERGA wishes to note that this new provision would be likely to entail changes to national legislation, which has recently been or is currently being amended as part of the transposition of the AVMS Directive. While the provision that it "does not affect national measures implementing Article 7a of Directive 2010/13/EU" is welcome, it will be essential to avoid confusion and reduce legal uncertainty for device manufacturers and media service providers.

In the same spirit, consistency should be ensured with the relevant provisions of the DSA, and in particular with Article 25 on the design and organization of online interfaces and Article 27 on the transparency of the notice scheme, which could be taken as a list.

HH. Finally, in order to take full advantage of this provision, ERGA would like to suggest that the concept of "default setting" be further clarified in the text or, failing that, in a recital.

SECTION 5 - MARKET MEASURES AND OPERATIONS Article 20 - NATIONAL MEASURES

In its response to the public consultation on EMFA, ERGA indicated that, in general, common basic procedural criteria for administrative decisions affecting the media (e.g. non-discrimination, proportionality, transparency) could present added value. Member states could be called upon to communicate and explain these envisaged measures. ERGA has also declared itself ready to issue non-binding opinions on national measures and proceedings likely to result in restrictions on the entry or operation of media on the market, where such measures present a clear and justified cross-border character and difficulty.

In the light of EMFA's proposal, ERGA wishes to express its support for this provision and for the approach based on general principles that has been chosen.

At the same time, ERGA wishes to note that, under the proposed provision, the Committee might, in some cases, also have to consider national measures potentially involving press publishers. This could raise difficulties in some Member States, since few national media regulators have the competence and expertise in this sector. In any case, ERGA wishes to make it clear that neither it nor its members are asking for specific new regulatory powers vis-à-vis the press sector, which is subject to its own very specific rules.

To further improve the proposed scheme, ERGA would like to make the following proposals:

II. For the sake of legal certainty, and in order to avoid potentially divergent interpretations of the scope of this provision, but also an excessive burden on NRAs and the Committee, EMFA should be more specific as to the types of measures covered and the cases in which the corresponding provisions apply, taking into account the principle of proportionality. For example, a (non-exhaustive) list of examples could be provided in the recitals to illustrate the type of measures covered by this provision.

JJ. In the case of national measures with a potential impact on the internal media market, the Committee should be able to issue an opinion on a national measure also on its own initiative, and not only at the Commission's request.

Article 21 - CONCENTRATIONS ON THE MEDIA MARKET

In its response to the public consultation on EMFA, ERGA expressed its support for EMFA to set common basic norms (structural rules and general principles) for media market transactions. ERGA stressed that these provisions should be based on general principles and address minimum procedural norms for Member States' assessment of the effects of transactions on the media market and on media plurality. ERGA stressed that, ideally, only the principles of such a review should be enshrined in the EMFA, with member states remaining free to choose appropriate and proportionate modalities. One such principle could include an obligation for competition authorities to demand an opinion from the competent media authority (where appropriate) on the effects of the planned transaction on media plurality and possible remedies, given that such a procedure is already in place in a number of Member States.

Against this background, ERGA welcomes the principles proposed in EMFA for the assessment of mergers in the media market. ERGA also supports the involvement of national media regulators in assessing the functioning of the media market from the point of view of its impact on media plurality; it will gladly contribute to any guidelines the Commission may publish on this subject.

At the same time, ERGA notes that, under the proposed provision, the Committee could, in certain cases, also examine media market mergers potentially involving press publishers. This could raise difficulties in some Member States, as national media regulation authorities are rarely competent in this sector. In any case, ERGA wishes to make it clear that neither it nor its members are demanding any new specific regulatory powers in relation to the press sector, which is subject to its own very specific rules.

That said, it is important for ERGA to raise the following questions and proposals:

KK. Greater clarity should be given, as far as possible, on the thresholds for triggering this provision, and on how to define an operation "likely to have a significant effect on media plurality and editorial independence", in order to guarantee legal certainty, particularly for the national regulatory authority or body which will have to browse the Committee.

LL. This is all the more important as the additional steps introduced by this provision into current national merger assessment proceedings (notification to the Committee, opinion of the Committee or even of the Commission) could slow down existing national procedures. In some cases, this could have a negative impact on the media players concerned. It would therefore be appropriate to better circumscribe the cases in which this procedure will have to be followed, so as to limit it to a small number of cases where there is a real need and added value.

MM. the respective national rules following the adoption of EMFA should also specify the nature of the media regulator's assessment of plurality, to avoid the risk of it being purely formal and not taken into account in any substantial way. Ideally, the national competition authority responsible for the merger and requesting the media regulator's assessment should be required to follow it, or at least to justify why it does not intend to follow it.

Article 22 - OPINION ON CONCENTRATIONS IN THE MEDIA MARKET

In its response to EMFA's public consultation, ERGA indicated its willingness to provide opinions on the impact on plurality of certain significant operations in the media market. ERGA is therefore pleased that EMFA's proposal grants the Committee this new mission.

NN. In cases where the Committee is not browsed by the national media regulation authority, it should have the possibility of formulating such opinions not only at the Commission's request, but also on its own initiative.

OO. Conversely, granting the Commission the possibility of providing its own supplementary opinion (pursuant to article 22(2)) may raise questions, since the assessment of the risk of a given merger for plurality or media independence should in principle be carried out by independent regulatory bodies.

SECTION 6 - ALLOCATION OF ECONOMIC RESOURCES

Article 23 - AUDIENCE MEASUREMENT

ERGA members are well aware of the current challenges in audience measurement, such as the diversity of methodologies, opacity in some cases, and disparity in data availability. This is particularly true for online platforms, but also for certain on-demand audiovisual media services.

ERGA therefore welcomes EMFA's proposal on audience measurement, based on the principles of transparency, impartiality, inclusiveness, proportionality, non-discrimination and verifiability. In addition, ERGA is ready to contribute to better audience measurement by promoting the exchange of best practices, and to encourage the development of codes of conduct relating to audience measurement.

ERGA also considers that certain amendments should be made to this provision in order to strengthen its useful effect:

PP. Although the definition of "audience measurement" is broad and also encompasses online players, it is not explicitly stated that online platforms or on-demand services are covered by the proposal. The provision should be amended accordingly, explicitly mentioning that online platforms and on-demand services are covered by Article 23(2).

QQ. This article, which supplements the DMA rules, introduces an obligation to share methodologies, not the data itself, which could be considered insufficiently ambitious and effective. Consideration could therefore be given to going further and specifying, in the article itself, that the players concerned have access to both the audience measurement methodologies and the relevant data.

RR. The list of players authorized to access audience measurement methodologies (media service providers, advertisers as well as third parties authorized by media service providers) should be extended to include media regulators, who should also, as suggested above, be granted access to audience measurement data.

SS. As suggested by ERGA in its response to the public consultation on EMFA, a general obligation for regular auditing or certification of audience measurement by an independent body (private or public) should also be introduced, as well as an obligation for this body to publish its reports/audits/certifications.

Article 24 - STATE ADVERTISING

In its response to the public consultation on EMFA, ERGA considered that the concern in this regard was twofold: (i) unfairly allocated state advertising could have a negative impact on competition within the media market by encouraging investment in certain media in a discriminatory manner and to the detriment of others; (ii) it would also be likely to have a negative impact on the editorial independence of these media companies.

ERGA therefore supports the proposal to introduce transparency obligations for Member States in the allocation of public advertising in the EMFA, provided that these obligations are proportionate and not excessively burdensome.

While fully endorsing the objective of encouraging transparency in state advertising, ERGA wishes to note that a task of monitoring information on state advertising from any public or state entity (imposed on NRAs by the EMFA proposal) currently falls to an extremely limited number of audiovisual regulators, and may be considered potentially sensitive.

TT. Given that the definition of state advertising proposed in EMFA is quite broad, particularly in relation to state-controlled or state-owned enterprises, this new remit for regulators is also potentially far-reaching. It would therefore be appropriate to consider restricting the definition to state-owned companies where the state is effectively involved in the day-to-day affairs and has influence or control over advertising strategies regarding advertising expenditure and placement, provided that appropriate justification is provided as to the actual level of influence and control.

UU. Conversely, consideration should be given to further clarifying that the one-million-inhabitant threshold applies only to local authorities, so that the provision is effectively applicable to Member States with less than that number of inhabitants.

VV. Finally, with regard to the task of "monitoring the award of public advertising" (Article 24(3)), the work of NRAs would potentially be very burdensome and also complex if the idea were to analyze the award of advertising by public entities. EMFA's provision should therefore be clarified as to what exactly is expected of NRAs: a high-level check or an in-depth analysis. If the latter were to be confirmed, appropriate additional resources would have to be allocated to the NRAs.