The European Parliament, threatened by France and Germany with a trial at the CJEU on the law on press freedom

According to sources cited by the european deputy Ramona Strugariu (Reper/Renew Europe), rapporteur on the European Act for Mass Media Freedom (EMFA), France, Germany and Hungary are threatening to sue the European Parliament because of the guarantees introduced in the legislative proposal, guarantees that would limit the concept of national security, a concept whose definition belongs exclusively to the member states, according to the Treaty on the Functioning of the European Union.

During a meeting, in Strasbourg, with media representatives from our country, Ramona Strugariu stated: "We received information from sources that we will be sued by some member states - which did not want such a case from the beginning of legislative proposal - and the legal basis of the position adopted by the European Parliament will be contested. I've been through this before, I've heard it before, there have been such attempts before. Let's see if it will happen or not. The respective states are now looking for reasons, all kinds of quirks, legal formulations, especially since the act has provisions that refer to the common market, so that they can go to the Court of Justice of the European Union. From our sources, we understood that it would be France and Germany, but there were several states interested, such as Poland, which will now have a pro-European government, and Hungary. On Tuesday we learned that the subject of an approach that some member states would make to the CJEU, mainly to challenge the legal basis, is coming back. That's all I know. It is not necessarily related to Article 4, but I suspect that it may be one of the reasons, because it has produced a lot of excitement in the discussions in the Council and a lot of concern, including about the definition by each EU member state of the notion of national security and the extent of the borders this one. According to EU member states and treaties, national security is a national prerogative and can effectively excuse certain behaviours, actions and attitudes. Member States will prevail on this matter all the time. Now, things are not so bad in the sense that in the treaties some matters related to national security are not a prerogative or something that we cannot regulate. But we can't, in fact we don't have the powers to ban spying on journalists, even if we really want to and even if we send strong political messages about it. We have no legal basis to act, except for what we did in the EMFA proposal, which is to establish a solid framework of guarantees that we can offer journalists so that, if it happens, when a state investigation happens , to have their rights respected based on these guarantees. France has this major objection regarding national security and has proposed from the beginning that we have a clause to be inserted in several articles of law, because that country has very complex counter-terrorism laws, laws that were passed simultaneously with the appearance of the proposal European Act on Mass-Media Freedom".

The European deputy states that the public demonstrations of this period, which take place after the events in Israel, could constitute a justification for France, Germany and Hungary to once again increase the level of opacity and the level of legitimization of some measures to reduce media freedom , "but that does not mean that we have to take the authorities in the respective states at their word and give them a green light or a blank check to act".

Ramona Strugariu pointed out: "In France there is jurisprudence of the CJEU, which is contested by the National Defense Council of France, decisions which claim that this justification of national security in the name of which you can do anything, however, anyway, is not legal. So at this moment we have decisions of the CJEU which have the force of law".

His Lordship mentioned that a possible court action against the European Parliament will not block the trialogue with the Commission and the Council of the EU, that the negotiations will continue, but that action may delay the application of the normative act when it enters into force.

According to the rapporteur of the European Parliament for EMFA, the position adopted by the European deputies contains two fundamental principles: "The first is related to editorial independence. The second refers to the transparency of the allocation of public funding to the mass media, allocation who's provide for non-discriminatory and professional selection procedures. The money from state advertising must be allocated fairly, based on very clear criteria previously established, and not be preferentially given even in emergency situations, of crisis as was the Covid 19 pandemic, when faster allocations are needed and the procurement procedure cannot be carried out as provided by national legislation. After the respective situations, it must be checked how and on what criteria this money was allocated, allocation which must comply with the criteria from classic cases".

Regarding the relationship between media service providers and large internet platforms, the position adopted by the European Parliament provides for the obligation for platforms to retain content for at least 24 hours, for content originating from media service providers that have passed through a registration procedure and are recognized.

Deputy Ramona Strugariu also said: "It is a controversial topic and I am convinced that we will have tense discussions with the representatives of the large internet platforms and the EU Council, but the discussions will be tense on several levels. In general, the Council's approach is to weaken the position of the European Parliament, especially where there is no agreement between member states regarding one point of view or another. In the Parliament's proposal we also have the establishment of this European board, the former ERGA, with the regulatory authorities, but we want this board to be a distinct legal entity and to monitor practically everything that means the implementation of measures for press freedom, to also have a moment of said when there are, for example, conflicts between media service providers and platforms regarding a certain type of conflict. Last but not least, we have the regulation in Article 4 that covers espionage, interceptions, surveillance measures that can be ordered during criminal investigations, a regulation that establishes two absolute principles. The first is editorial independence, and the second is the protection of sources. Article 4 also says that, as far as the professional activity of journalists is concerned, protection is absolute and neither spyware nor other intrusive measures can be used. There is practically a full ban when it comes to professional activities. When it comes to serious crimes, as they are defined in European legislation, and it is a list of 32 crimes, each of which provides prison sentences of at least 5 years, of which journalists would be suspected, the European Parliament proposed a set of measures and very solid procedural guarantees. When the authorities investigate such a crime, we want to avoid situations of arbitrary detention, searches, any kind of abusive attempts to reach journalists' sources, because we know very well that, most of the time, this is the problem and this is what the state authorities are looking for. All these things must be done with a warrant from the judge and the authorities' use of spying software and interception of journalists must be the last measure that can be taken only in exceptional circumstances and only in conditions where all other previous measures have already been taken and the information targeted by the investigation bodies was not reached".

The European Act for Mass Media Freedom is not a directive, but a regulation, so it will have to be applied immediately by the member states - without transposition and national modification - after the European Parliament reaches an agreement in the trialogue with the EU Council and the European Commission.