Centro Europa 7 s.r.l. v. Italy

Italy's Media Pluralism Gap

In 1999, Europa 7 won a contract to broadcast a new TV station in Italy, but its frequency was occupied by Mediaset, which refused to give it up. Europa 7 went through the Italian Courts to win a case at the European Court of Justice in Luxembourg, but it is still not on the air. The Mediaset Group is owned by the family of Italian Prime Minister Berlusconi, who also has indirect control over the national broadcaster RAI in his capacity as Head of Government. Europa 7 has now taken its case to the European Court of Human Rights in Strasbourg to argue that media pluralism requires an end to the Berlusconi duopoly.

Facts

In mid-1999, Europa 7 participated in an open bid for national television concessions organized by the Italian Ministry of Communications. It placed sixth in the competition and won one of the licenses on offer. In October 1999, it received the actual title to the concession by the Ministry. However, in December 1999 it was notified by the Ministry that it could not be granted an operating frequency because of an "objective impossibility:" the lack of a free national frequency. In fact, the frequency was not available because the Mediaset Group, Italy's largest television company, had failed to comply with a 1997 anti-concentration law that required it to relinquish one of its three national terrestrial frequencies. Mediaset, which is controlled by the family of current Italian Prime Minister Silvio Berlusconi, has dominated the national private television sector since the early 1980s.

In November 2002, the Italian Constitutional Court held that the failure of the 1997 Act to set a strict deadline for the handover of the "over-quota" frequencies (including the one held by Mediaset) was unconstitutional. The Court said the transition should in no case continue beyond December 31, 2003.

On December 24, 2003, the Berlusconi Government adopted emergency legislation, later ratified by Parliament, postponing indefinitely the handover of over-quota frequencies. The reason provided by the Government was the need to obtain an opinion from the broadcasting regulatory authority, AGCOM.

A new broadcasting law adopted in May 2004 (the "Gasparri Act"), again under a Berlusconi government, formally extended the 1997 Act's transition (i.e., shedding of over-quota channels) until the completion of the digital migration nationally-in the face of AGCOM objections.

In late 2008, after years of domestic and supranational litigation, Europa 7 was finally granted an operating frequency that was squeezed out of the frequencies held by RAI, the public broadcaster (not one of Mediaset's, as originally contemplated). Europa 7 says that the frequency it finally received is inferior to the one contemplated by the 1999 concession, making it difficult to reach large parts of the national territory.

Open Society Justice Initiative Involvement

The Justice Initiative intervened in the case with written comments providing a comparative survey of European law and practice on general principles of media diversity, regulation of broadcast ownership, and political interference in broadcasting.

Arguments

Media pluralism. European standards require that states must guarantee the right of individuals and the public at large to have access to a pluralistic media sector, especially in broadcasting.

Diversity of ownership. States should ensure that a sufficient variety of outlets and perspectives, provided by a range of different owners, is available to the public.

Freedom from political control. Allowing senior politicians or government officials to control significant segments of the national broadcasting sector is incompatible with current European notions of freedom of expression.

Timeline

November 2003. Europa 7 files a legal claim against the Ministry of Communication (MinCom) and AGCOM for failing to provide an operating frequency.
May 2004. The Gasparri Act states that only existing analogue broadcasters will be eligible to start broadcasting in digital, excluding Europa 7.
2005. The Consiglio di Stato, Italy's highest administrative tribunal, refers the case to the European Court of Justice.
January 2008. The ECJ finds a violation of EU law because Europa 7 cannot broadcast through lack of a frequency. The Consiglio di Stato orders that they are granted another frequency.
December 2008. The government grants a frequency to Europa 7, but it is inadequate to broadcast, and is only available from June 30, 2009.
January 2009. The Consiglio di Stato awards limited damages of one million Euros, finding that Europa 7 had only a "legitimate expectation" for the future allocation of a frequency, not a right to the immediate exercise of broadcasting economic activity from 1999.
July 2009. The applicant files a complaint with the European Court of Human Rights.
November 2009. The ECtHR communicates the case to the Italian Government.
March 2010. The Justice Initiative files written comments as a third-party intervener in the case.

Finding

The case is currently pending before the ECtHR.

Resources

Case Documents (download below)
Written Comments, Justice Initiative, March 10, 2010.

Related Cases
Freedom FM v. Cameroon

Links
Media Policy

Additional Resources
Open Society Institute, Television Across Europe:Regulation, Policy, and Independence (2005), as updated by Television Across Europe: Follow-up Reports (2008). 
Independent Study on Indicators for Media Pluralism in the Member States-Towards a Risk-Based Approach: Final Report, K.U. Leuven: July 2009. Prepared for the European Commission's Directorate-General Information Society and Media.
Council of Europe Parliamentary Assembly (PACE), Recommendation CM/Rec(2007)2 on Media Pluralism and Diversity of Media Content, January 31, 2007.
PACE, Resolution 1387(2004) on Monopolisation of the Electronic Media and Possible Abuse of Power in Italy, June 24, 2004.
European Commission for Democracy Through Law (Venice Commission), Opinion No. 309/2004 on the Gasparri Laws, June 13, 2004.
European Parliament, Resolution (2004)0373 on the Risks of Violation, in the E.U. and Especially in Italy, of Freedom of Expression and Information, April 22, 2004.

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