How does EU Law effect Media Law in the UK?

Before reading the blog post on The European Court of Human Rights, Media Freedom and Democracy, it may be of some use to explain how EU law affects the UK. This blog post is intended to supplement that blog post, incase you may have come across this blog without any prior knowledge of EU Law.

How does EU Law effect Media Law in the UK?

It can be very easy, living on an Island as we do, and sticking resolutely to the British Pound, to think that the United Kingdom being part of the European Union is a bit of an abstract concept. Nonetheless, it cannot be ignored that since 1 January 1973 the UK has been part of the  sphere of peace and stability that is the European Union, and as such has signed up to take on the responsibilities that ensue with such a commitment.

One of these responsibilities include changing it’s laws, where appropriate, so that it conforms to the legal order the EU has created in order to achieve the objectives stipulated in the Treaties. As the European Court of Justice stated in the landmark case of Costa v ENEL  by signing up to the EU “Member states have limited their sovereign rights … and have thus created a body of law which binds both their nationals and themselves.” The UK has acknowledged this in the European Communities Act 1972, which provides for the incorporation of European Union law into the domestic law of the United Kingdom where this is required. This means that, as established in The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others although Parliament is still sovereign, wherever any provision of the national legal system and any legislative, administrative or judicial practice contradicts EU law, the latter will prevail. In my opinion this system is vital in ensuring that EU law is applied in all member states. It is evident that had this legal principle not been established the effectiveness of EU law would have been impaired to such an extent so as to make it, in effect, obsolete; without the principle a rule of national law could effectively prevent a court seised of a dispute governed by Community Law, from granting interim relief. Thus the UK could have evaded its obligations by simply passing national laws which contradicted EU law, making any rights conferred by Community law obsolete, and membership to the EU somewhat less useful.

Nonetheless Euro-sceptics should not fret just yet. The passing of EU law in general is a democratic process that involves balancing the wants and needs of the members states against the objectives of the EU’s founding treaties. Looking at Media Law specifically, the EU historically began pushing a process of liberalisation through harmonisation and applying competition rules to constrain film subsidies and support public service broadcasting. This then lead to member states fearing that the European Community had overstepped its jurisdiction, many member states being of the view that media should be a competence of the member states. As a response to this, the subsidiary principle was introduced in the 1992 Maastricht Treaty, not just applying to media law but law making in general. Article 5(3) of the Treaty on European Union (TEU) provides that “under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” Meaning that under this principle policy actions and decisions should be taken at the lowest policy level possible.

On a side note Article 5 limits the competencies of the Union by giving legal footing to other key principles such as the:

• principle of conferral– the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
• principle of subsidiarity– in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
• Principle of proportionality – Under this principle the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

Casting a critical view it is evident that although this represents a noble set of virtues the subsidiary principle is more easily explained then practically applied. This can only be described as a difficult balancing act in the case of trade and culture issues as here EU competencies blur with that of member states.

And with that, I think you are now up to date with the basic information needed to make sense of the main blog which can be found here.

Thanks for reading!

Zahra