Hungary has brought suit against the EU over the European Media Freedom Act (EMFA), a landmark EU law that introduces several critical safeguards for media freedom and pluralism. The Hungarian government, which exerts both direct and indirect control over an estimated 80% of the country’s national media market, is asking the Court of Justice of the EU (CJEU) to annul the EMFA on the basis that it violates national sovereignty and exceeds the legislative prerogative of the EU – a legally dubious position to which no other EU country has subscribed.

Because of the Statute of the CJEU, civil society organisations such as Liberties are not allowed to file third-party submissions, known as amicus curiae briefs, which would allow them to bring additional information and enhanced legal arguments to the court’s attention.

Nevertheless, we have authored an unofficial amicus brief in this case due to the importance of the EMFA in defending fundamental rights, media freedom and pluralism, and core EU values.

The EMFA is a critically important law

The EMFA addresses severe and systematic threats to media freedom and pluralism in the EU. Annual reports on the subject, such as the Liberties Media Freedom Report, show that media freedom and pluralism continue to erode across the Union. Governments continue to influence public service media, media regulatory bodies, and the processes through which public funds for media advertising are allocated. Regardless of the threat, the problem is often most significant in Hungary, where the government directly controls the editorial positions of public service media and the decisions of the media regulatory body; it uses public money for media advertising as a tool to support friendly outlets; and the national media sector is almost entirely controlled by friends of the ruling party.

Furthermore, our unofficial amicus points out, the position that the EMFA violates national sovereignty is untenable. The EMFA is based on Article 114 TFEU, which authorises the Union legislator to adopt measures harmonising national laws and regulations with the objective of removing obstacles and hindrances from the functioning of the internal market. This would surely cover national media markets, which have increasingly moved online, may have substantial foreign ownership, and have a significant influence on pan-European elections, just to name a few ways in which their scope of influence and economic influence always go far beyond national borders. Moreover, Article 11(2) of the Charter of Fundamental Rights (CFR) recognises the importance of free and plural media as a necessary consequence of guaranteeing freedom of expression. Indeed, the EMFA is crucial in protecting not only independent media but the fundamental rights of each and every person in the EU.

Change will only help judges

As a long-term aim, Liberties invites stakeholders, such as judges, academia, civil society, as well as European decision-makers, to argue that the Court would benefit from third-party amicus briefs, similarly to other regional and international courts, in annulment procedures, preliminary rulings and infringement procedures.

Such submissions will only provide potential angles and research for the Court's attention. What we want to achieve is to consider civil society as friends of the Court, which is what amicus curiae means. At this time, we have no option to officially send this document to the Court. We hope that the Commission and countries joining the Commission would benefit from our analysis.