Mediaset, the EU Court accepts Vivendi’s appeal: “Part of the Gasparri law is contrary to the rules of the European Union”

The European court of justice upheld the appeal of Livendi of the Consolidated Law of Audiovisual Media Services and Radio of the Gasparri Law. For the judges of the Luxembourg the Italian standard that “prevents Vivendi from acquiring 28% of Mediaset’s capital” “it is contrary to EU law“This was announced by the EU Court itself with the decision issued today. In a press release issued to explain the reasons for the decision, the judges emphasize that Italian law is at the center of the appeal.”constitutes an obstacle freedom of establishment is prohibited as it is not adequate to achieve the objective of protecting the pluralism of information. “The Court recalls, first of all, that Article 49 of the EU Treaty prevents any national measures that may be possible hinder or discourage exercise, on the part of the citizens of the Union, of the freedom of establishment. As in fact, the European judges themselves recall, this is the case of the Italian legislation that prohibits Vivendi keep holdings that you had acquired in Mediaset or that you had in Telecom Italythus forcing these holdings to end, in one or another of these companies, to the extent that they exceed the established thresholds.

In the ruling, the judges also point out that, “” although a restriction on freedom of establishment may, in principle, be justified by an objective of general interest, such as the protection of information and the pluralism of the media, this does not occur in the case of the provision in question, since the latter is not suitable to achieve this target “. In this sense, the Court recalls that EU legislation, in the field of electronic communications services, “establishes a clear distinction between content production and transmission. Therefore, the companies operating in the electronic communications sector, which exercise control over the transmission of content, do not necessarily exercise control over the production of said content. The provision in question does not refer to the links between the production and transmission of the content and is not even formulated in such a way that it applies specifically in relation to these links “.

The Court also observes that the provision in question defines “too much restrictive the perimeter of the electronic communications, excluding in particular markets that are increasingly important for the transmission of information, such as retail mobile phone services or other Internet-related electronic communications services, as well as satellite broadcasting services. As they have become the main means of access to the media, it is not justified to exclude them from this definition ”. The sentence also establishes that “equating the situation of a ‘subsidiary’ to that of an ‘associated company’, in the context of calculating the income obtained by a company in the electronic communications sector or in the SIC, does not seem to be compatible with the objective pursued by the provision in question “. Therefore, ultimately, according to European court of justice the Italian provision establishes thresholds that, “by not making it possible to determine whether and to what extent a company can really influence the content of the media, are not related to the risk of media pluralism”.