The decisional practice of the Commission
Wait and see
From the end of the 1980s onwards, the position of public broadcasters has been challenged at the EU level. Via use of the EU anti-trust rules, private media companies first questioned the joint acquisition of sports rights by public broadcasters (Arino, 2004b: 108; Coates and Sauter, 2007: 1506-1510; Donders and Van Rompuy, 2012) and, subsequently, the legitimate character of financial support schemes. In doing so, they in fact attempted to instrumentalise European competition law to trigger alterations of national PSM policies.
The first state aid complaints were filed by private broadcasters in Spain and Portugal, quickly followed by complaints concerning public broadcasters' funding and activities in Italy, the United Kingdom and Germany. Member states and public broadcasters reacted fiercely against these complaints, arguing that PSM fell within member states' cultural competences and, hence, outside the scope of possible action from the Commission (Donders, 2012b). They also pushed for the so-called Prague resolution in the Council of Europe, emphasising their 'commitment to maintain and develop a strong public service broadcasting system in an environment characterised by an increasingly competitive offer of programme services and rapid technological change' (Council of Europe, 1994). In addition, and more forcefully, member states unanimously agreed on the Amsterdam Protocol, which entrusts PSM policies to the national, and not the European, level. Member states went against European intervention out of principle - being unwilling to accept further involvement in the field of the media after the rather extensive and revolutionary harmonisation of television policies at the European level with, most notably, the Television without Frontiers Directive (Council of the European Economic Community, 1989) In addition, public broadcasters were at the time still very much politicised in many of the involved countries, which obviously reinforced the pre-existing tendency to protect PSM from Commission interference.
As a consequence of member states' and public broadcasters' opposition, the Commission was at first not particularly eager to explore the PSM domain (Humphreys, 2003: 8; Michalis, 2007: 169). It also lacked experience to investigate state aid complaints regarding broadcasting, which complicated matters further and ultimately led to a stalling of decision-taking. In this regard, Levy (1999: 95) observes that the involvement of 'DG IV [the Commission Directorate General then responsible for the enforcement of competition rules]... in disputes between private and public service broadcasters marked a rather more reluctant and even more controversial form of intervention'. Its lack of involvement was considered a 'failure to act' by the General Court of the European Union (GCEU, ex-Court of First Instance, CFI) three times in a row.4 For example, in 1998, the GCEU, in reviewing the Commission's apparent reluctance to investigate complaints of French private broadcasters against the commercial funding of the French public broadcaster France Television, stated the following:
Neither the complexity of the case, nor the politically sensitive nature of the subject-matter, nor the various steps taken by the Commission, nor the circumstances that it was not yet in a position to classify the various grants given to France-Television as state aid can justify such a lengthy preliminary examination of the measures at issue.5
So, the GCEU recognised, as Smith (2001: 230) remarked, that 'the slow response was not simply a case of bureaucratic omission; the delay reflected the Commission's reluctance to make judgments about how to enforce state aid rules in the area of public broadcasting'. For the GCEU, however, such motivations at no point justified a failure to come to a decision after five to eight years from the initial filing of the complaint.