Invoking the single market clause as sole legal basis for the EMFA needs to be reflected in detailed explanations how the provisions address actual hindrances to the market and how the new rules would overcome them. Content and details of the provisions should be designed in consideration of Member States’ cultural sovereignty. Extracting certain parts of the Proposal into a Directive or revising some of the provisions are possible solutions.
A stricter delineation with other legal acts supplementing the general “without prejudice”-rule is key for legal certainty considering the existing complex legal framework the EMFA is situated in. In particular, relation to the AVMSD should be clarified with a clear priority rule of the latter, as currently the Proposal only addresses the amendment to the AVMSD.
Since definitions are key elements deciding on scope and impact of the rules, these need to be precise and complete. In that regard, additional core notions such as “news and current affairs” or “editorial independence” should be addressed in order to be more exact about the distinction line between providers covered by the EMFA and other content providers.
As the EMFA Proposal is based on the importance of fundamental rights and freedoms, it is important to underline whether the EMFA creates new “rights” or they only reiterate existing guarantees. Equally important is clarity about the legal consequences attached to the provisions in order to avoid substantive rules without practical impact. For the supervision in this area, independence is of utmost importance, which calls for a review of the construction of the cooperation structures between the European Board for Media Services, its members and the European Commission. For newly inserted powers of the Board or the regulatory authorities concerning cross-border issues it should be considered to lay down more details on which types of coordination measures are to be realized.