The meeting between US President Joe Biden and Commission President Ursula von der Leyen a few days ago showed that the EU is increasingly adopting the hard line taken by the US against China. Bernd Lange, Chairman of the Trade Committee in the European Parliament, is surprised by the statements made at the meeting. In an interview with Eric Bonse, he argues for a rational approach to China and warns urgently against decoupling from the People’s Republic. He also explains why, in his view, the dispute over the US Inflation Reduction Act is far from over.
Today, the EU environment ministers meet in Brussels. The focus of the Environment Council is the revision of the Industrial Emissions Directive. There is dispute in the run-up to the meeting about the threshold values above which livestock farms would fall under the directive. There was also apparently no agreement in Berlin. On the eve, the German government had not yet found a common position. The revision of the Industrial Emissions Directive (IED) is of great importance for Germany: of the 52,000 industrial plants affected throughout the EU, 13,000 are located in the Federal Republic alone, as Claire Stam reports.
It is well known that opinions in the traffic lights coalition also differ on the subject of e-fuels. Now the Federal Ministry of Transport presented a proposal on how the dispute about the end of internal combustion engines in 2035 can be resolved within the federal government. According to information acquired by Table.Media, the paper was sent to the EU Commission yesterday afternoon. It was a “big step forward,” government circles said. Read more in the News.
EU Commission President Ursula von der Leyen wants to end the dispute with the USA over the Inflation Reduction Act (IRA) and massive US subsidies for green technologies. She expressed optimism after her visit to President Joe Biden in Washington. Has the dispute now been settled?
No, the dispute has not been resolved. There may now be an agreement to put the EU on an equal footing with the 20 countries that are linked to the USA via a free trade pact. This could certainly make things easier when it comes to the supply of raw materials for production in the USA, such as batteries for electric cars. However, the question arises as to whether the agreement only applies to raw materials extracted in the EU, such as lithium from Sweden, or also to processed and recycled ones. Ultimately, the answer will determine how many raw materials we can sell to the US. I suspect that the volume will be limited.
That sounds rather meager …
Another important result is that subsidies are now to become more transparent on both sides of the Atlantic. There is to be a working group on this in the TTC. But that’s about it.
What’s next?
The important question of assembling the e-cars is still open. According to my information, it will continue to take place 100 percent in the USA. That’s why battery factories are also being built close to car factories – as is the case with Volkswagen, as they want to build a plant in Canada. This has to be discussed further in the TTC, where there is a task force. I hope that it will still be possible to relax the rules and I am waiting for guidelines from the EU Commission. They could come in a few weeks.
So the problem of migration to the US has not been solved?
No, it hasn’t been solved – on the contrary, investment continues to move toward the USA. I have already mentioned the example of Volkswagen. The Chilean e-fuel manufacturer HIF, on which Porsche also relies, also wants to build a large plant in Texas. We are losing out on these investments in Europe.
You referred to the possibility of a complaint before the World Trade Organization. Should the Commission now get serious?
It is still too early for that. When all the negotiations are finished, we will take stock. In its resolution on the IRA, Parliament noted the possibility of a lawsuit. However, we are in a dilemma here. After all, the EU has close geopolitical ties with the United States. On the other hand, lawsuits must also be possible between friends. Personally, I am very relaxed about this.
Another important topic at the talks in Washington was China. How do you assess the statements in the joint statement released by Biden and von der Leyen?
I was surprised by these statements. The statement contains a whole series of anti-China elements. It’s about non-market practices, but also about security policy – albeit rather indirectly, via a detour to Russia. The statements, which I did not expect to hear, evoke the risk of decoupling from China. We are already seeing the first steps along this path. Just think of the export controls for microchips that the Netherlands introduced under pressure from the US – without consulting the EU. Yet this is an EU competence. I am also concerned about the apparently planned control of investments in third countries – especially China. That was previously unthinkable.
In Berlin, they say they don’t want de-coupling, but de-risking. What do you think of that?
Of course it’s okay to look for and mitigate risks, for example in supply chains from China. However, the dependence is not as great as many believe. Only 0.2 percent of intermediate products and 1.4 percent of end products are clearly dependent on China. Conversely, Chinese manufacturers are also dependent on the European market. In addition, we have outsourced some of our production voluntarily. For example, 60 percent of our lithium is processed in China. But that’s mainly because the EU has outsourced its processing capacity – production is considered too dirty.
Against this background, many fears seem exaggerated to me. I advocate a rational approach to China. If the US wants to strengthen its own economic dominance, then we have to be clear! Decoupling makes no sense from a European perspective.
Shouldn’t that set off alarm bells, especially in Germany? After all, China is the most important trading partner, even ahead of the USA.
Of course, we have our own economic interests, and we have to defend them. But we in Europe have also already responded well to the new situation. We have set up a TTC working group against possible dangers in trade with China. And against the attempt to use trade as a weapon against Lithuania, we have jointly defended ourselves in the EU.
In all of this, however, the different interests must be taken into account. Europe must not allow itself to be overrun by the USA, as happened in the Netherlands. The problems with microchips must be tackled on a European, not a national, level. The discussion on this topic is not over yet!
Is the EU Commission leading us into a US-led anti-China coalition?
I wouldn’t make such a sweeping statement. Von der Leyen has obviously changed track. But not everyone in the commission is getting on board this train.
Council President Charles Michel also warns against blind allegiance to the United States.
Yes, there are intense discussions in Brussels about China policy. But nothing has been decided yet. Let’s wait for the legislative proposals first, and then the European Parliament will form an opinion.
Positioning within the German government is proving difficult, said a diplomatic source in Brussels. At press time, the coalition in Berlin has still not found a common line. The revision of the Industrial Emissions Directive (IED) is of great importance for Germany. The dispute is about amending a directive that has been in force for ten years: the issue is how to further reduce industrial pollutant emissions to air, water and soil. Of the 52,000 industrial plants affected across the EU, 13,000 are located in Germany alone.
The proposal drafted by the Swedish EU Council Presidency increases the threshold values above which livestock farms would fall under the directive. For example, the values for cattle, pigs and mixed farms were raised to 350 livestock units (LU) and for poultry to 280 LU – compared to 300 and 250 LU, respectively, in an earlier version. For livestock farms, the federal government has so far only been able to agree on 300 LSU for cattle, the diplomatic source added.
The president of the German Farmers’ Association, Joachim Rukwied, warned of the “serious consequences” of amending the directive. While the association stands by the currently applicable thresholds for testing emissions in pig and poultry farming, it rejects a further reduction in principle. This is because it would particularly affect small and medium-sized livestock farms and result in “a massive structural break”, says Rukwied.
Rukwied went on to say that an additional inclusion of cattle farming would not be technically feasible given the existing barns, which are almost exclusively naturally ventilated. The compromise proposal of the Swedish Council Presidency provides for a gradual lowering of the threshold values. In the view of the farmers’ association, this approach is not suitable for resolving the conflicting goals of animal welfare and emissions protection. Instead, it represents an exit from animal husbandry in installments, according to Rukwied.
For Christian Schaible, on the other hand, the discussion on intensive livestock farming is “completely misguided”. The head of the Zero Pollution Industry Division at the European Environmental Bureau (EEB) says: “First, the scope for cattle is to be softened to 350 livestock units, extensive livestock farming is completely out. Second, after all, there are not supposed to be any specific targets for farms before 2032“.
Schaible also highlighted the health and environmental impacts caused by livestock operations, which amount to €433 billion annually, according to the European Environment Agency. “Of that, a quarter, or €100 billion a year, is ‘Made in Germany’”, he explained. Expanding the scope to include a larger number of livestock farms would “lead to a reduction in methane and ammonia emissions” with corresponding health benefits worth more than €5.5 billion a year, according to the European Commission, Schaible added.
The revised IED is a key component of the Green Deal. It is designed to support the EU’s pollution prevention and circular economy goals, as well as energy policy, by helping to transform the industry. The new proposal will bring more facilities within the scope of the directive, particularly large capital-intensive plants that were not previously included, the diplomatic source said.
The proposal was negotiated for nearly a year in the Environment Council. In the process, some provisions on penalties and compensation for violations of the directive were deleted to make it easier to transpose the provisions into national law.
EU environment ministers will also exchange views on carbon capture certification at the meeting. Discussions are also planned on the proposal to revise EU legislation on packaging and packaging waste. They will also discuss a proposal to revise the Urban Wastewater Treatment Directive.
The Environment Council will be chaired by Romina Pourmokhtari, the Swedish Minister for Climate and Environment. The European Commission will be represented by Executive Vice President Frans Timmermans and Environment Commissioner Virginijus Sinkevičius. with Lukas Scheid
What is the best way to guarantee media freedom in Europe? In the past, different member states gave very different answers to this question. And some have explicitly little interest in freedom of the press. This is precisely what EU Vice President Věra Jourová wants to change, which is why she has launched a regulation with the Media Freedom Act (MFA). It was clear early on that its contents would be contentious. The parties involved are arguing not least about the legal basis chosen and the legal instrument.
In an interview with Table.Media, Sabine Verheyen (CDU), the European Parliament’s rapporteur, sharply criticizes the Commission’s proposal. Creating a generally applicable European solution out of many individual problems in the member states would not work by way of a regulation. The legal basis chosen (the internal market clause) and the way in which the regulation is used are problematic, particularly in combination.
“I’m trying to save this piece of legislation”, Verheyen tells Table.Media. “Because of the treaties, because of the Amsterdam Protocol”. Safeguarding media diversity, she says, is an explicit matter for the member states, in Germany precisely the federal states, as stipulated in the protocol declaration to the Amsterdam treaties. This does not mean that no regulation can be found at the European level. But the instrument of the regulation would automatically lead to problems. There is a risk of lawsuits against the regulation and ambiguities that could be avoided with a directive.
Enforceability is also more difficult with a regulation, says Verheyen. She would therefore like to turn the MFA regulation into two pieces of legislation: “I think it would make more sense and be more legally secure to really split it into a regulation and a directive instead of a regulation with opening clauses”. The EU Commission would have to propose such a directive, as it alone has the right of initiative.
Most recently, the Spanish shadow rapporteur in the CULT Committee Diana Riba i Giner (Greens/EFA) expressed her doubts about the project in “Contexte”: The example of the Audiovisual Media Services Directive (AVMSD) shows that the member states have not yet implemented it in some cases. Verheyen and her Social Democratic colleague Petra Kammerevert had opened this discussion. Whether the idea of a split is even a possibility, however, has not yet been clarified even with the EPP and S&D groups.
“You could remodel parts of the regulation into a directive with an implementation period of one year“, counters Verheyen. The Media Freedom Act would have to be split up for a proper solution: “Then we could leave the areas that are less critical to consider as far as the Commission’s competence is concerned and that have real internal market relevance or fundamental rights relevance as a regulation and transfer the other parts into a directive”.
Verheyen has very specific ideas about which regulations would be better transferred to a directive. She also sees a problem with the implementation of the AVMS Directive in national law. However, the MFA Regulation does not really offer a solution to this problem – the Commission will have to initiate infringement proceedings to increase the pressure.
The Commission’s MFA Regulation proposal would also deviate from the AVMSD in important places, such as the requirements for public broadcasting. Here, both the AVMS Directive and the MFA proposal contain requirements for supervisory bodies and their independence.
The Council’s Audiovisual Working Group also discussed a possible split. However, the proposal failed, at least for the time being: On the side of Germany, for which the federal states are responsible, only Poland wanted to support the proposal on Tuesday, reports “Contexte”.
After the Bundesrat had already taken a stand on the Media Freedom Act with a subsidiarity complaint, criticism has now also come from the Commission on Concentration in the Media (KEK). In Germany, the KEK is the body responsible for ensuring diversity of opinion on private television.
Media supervision in Germany has proven its worth in terms of protecting and guaranteeing an independent, diverse and free media landscape, says CEC Chairman Georgios Gounalakis. “The Media Freedom Act can establish this level of protection throughout Europe. However, the cornerstones for this must be the principle of state neutrality and a commitment to independent media and supervisory structures”.
The CEC thus criticizes above all the planned structure of supervision under the Media Freedom Act: “The possibilities for the EU Commission to exert influence, as provided for in the Media Freedom Act, contradict the principle of independent and non-governmental media supervision”, criticizes Gounalakis. The media are “not only an economic asset but also a cultural asset”. But that is precisely what the Commission is not responsible for.
It remains to be seen whether Verheyen will be able to push through her plan for a supplementary directive. Above all, the timetable is an obstacle a good year before the European elections. In order for the procedure for the Media Freedom Act to proceed in an orderly manner, it would have to be finally discussed in Parliament by October at the latest to allow sufficient time for the trilogue.
The LIBE and IMCO committees would have to submit their reports before the end of May. The Council has also not yet made much progress in its deliberations – it is waiting for a legal opinion from the Legal Service on the legal basis, among other things.
The French Loi de Vigilance (LdV) is the first law of its kind in the world: It has been in force since 2017 and obliges large French companies to exercise human rights due diligence in their global value chains. Obligated companies must draw up and publish plans for dealing with human rights and environmental risks worldwide throughout their value chain. In the event of violations of this obligation, affected parties can take legal action in French civil courts, demand rectification and, if there is a causality between the breach of duty and damage, also claim damages.
The first judgment under this law now shows that a good law alone does not necessarily help the people it is intended to benefit. What matters is the application and interpretation of a law.
In 2019, two French and four Ugandan organizations filed the first lawsuit under the LdV. It was directed against the French oil company TotalEnergies for neglecting its human rights and environmental due diligence obligations at its mega oil pipeline Eacop (East African Crude Oil Pipeline) in Uganda and the Tilenga project in Tanzania.
The world’s longest heated oil pipeline, which TotalEnergies is building together with state-owned companies from China, Uganda and Tanzania, will connect the oil fields in western Uganda and, in particular, oil wells in Uganda’s Murchison Falls nature reserve with the Indian Ocean. At stake for TotalEnergies and its partners is a billion barrels of crude oil with a current value of $80 billion. Climate researchers have calculated that the project’s climate footprint over its entire lifetime will be 25 times the current CO2 annual emissions of Uganda and Tanzania combined.
The plaintiffs accuse TotalEnergies of displacing more than 100,000 people from their land for the pipeline without adequate compensation and acting without regard for the endangered species living in the protected area. They argued that the court should require TotalEnergies to design its existing oil production and pipeline plans in accordance with its obligations under the LdV and to take adequate measures to address human rights risks.
TotalEnergies should also pay compensation to affected communities. In civil summary proceedings, the court should suspend the project until the associated risks are properly identified and the necessary measures to end human rights abuses and prevent an environmental disaster are implemented.
On Feb. 28, 2023, the court in Paris dismissed the action in these summary proceedings. It based its decision on formal arguments. The plaintiff organizations had not complied with the procedure because they did not repeatedly file a formal complaint against newly drawn up due diligence plans of the company after filing the lawsuit and, at the same time, presented facts in the oral hearing at the end of 2022 that occurred after 2019.
Moreover, in summary proceedings, the court could only examine whether the company had drawn up due diligence plans at all in accordance with the LdV, which had happened in the specific case. Whether these plans meet the substantive requirements of the LdV would have to be clarified in ordinary proceedings.
This ruling raises the question: Are French courts capable of dealing with the problems of global value chains? Or do the NGOs have excessive expectations, as TotalEnergies’ lawyer suggests when he claims that they are seeking a “Marxist” interpretation of the law?
In its decision, the court does not take into account the international framework in which the law was created. The LdV is a law that transposes international standards of human rights due diligence for companies into national law. According to the UN Guiding Principles, the aim is to take appropriate measures to prevent and minimize human rights risks.
It is not a matter of simply creating a due diligence plan. By focusing on the creation of a due diligence plan, the court formalizes a duty that is about an effort to take the most appropriate action in the specific context.
The purpose of due diligence laws such as the LdV is to have a preventive effect, i.e. to prevent human rights violations. In the interpretation of the Paris court, the summary proceedings, which are actually intended to have an equally preventive effect, cannot have any suspensive effect on the merits of the case. The entire procedure thus runs practically empty.
On the one hand, the plaintiffs can now appeal against this decision in summary proceedings to the second instance, which will take several years. Or they can try to get justice in the main proceedings. But this, too, will take time. By the time there is a final ruling, the pipeline project will probably be fully operational and the damage to the environment and to very many people will already have been done.
Miriam Saage-Maaß is a lawyer and Legal Director at the European Center for Constitutional and Human Rights (ECCHR), where she established the Business and Human Rights Program Area. She has worked on various court cases against companies related to the exploitation of workers in Bangladesh and Pakistan.
The meeting between US President Joe Biden and Commission President Ursula von der Leyen a few days ago showed that the EU is increasingly adopting the hard line taken by the US against China. Bernd Lange, Chairman of the Trade Committee in the European Parliament, is surprised by the statements made at the meeting. In an interview with Eric Bonse, he argues for a rational approach to China and warns urgently against decoupling from the People’s Republic. He also explains why, in his view, the dispute over the US Inflation Reduction Act is far from over.
Today, the EU environment ministers meet in Brussels. The focus of the Environment Council is the revision of the Industrial Emissions Directive. There is dispute in the run-up to the meeting about the threshold values above which livestock farms would fall under the directive. There was also apparently no agreement in Berlin. On the eve, the German government had not yet found a common position. The revision of the Industrial Emissions Directive (IED) is of great importance for Germany: of the 52,000 industrial plants affected throughout the EU, 13,000 are located in the Federal Republic alone, as Claire Stam reports.
It is well known that opinions in the traffic lights coalition also differ on the subject of e-fuels. Now the Federal Ministry of Transport presented a proposal on how the dispute about the end of internal combustion engines in 2035 can be resolved within the federal government. According to information acquired by Table.Media, the paper was sent to the EU Commission yesterday afternoon. It was a “big step forward,” government circles said. Read more in the News.
EU Commission President Ursula von der Leyen wants to end the dispute with the USA over the Inflation Reduction Act (IRA) and massive US subsidies for green technologies. She expressed optimism after her visit to President Joe Biden in Washington. Has the dispute now been settled?
No, the dispute has not been resolved. There may now be an agreement to put the EU on an equal footing with the 20 countries that are linked to the USA via a free trade pact. This could certainly make things easier when it comes to the supply of raw materials for production in the USA, such as batteries for electric cars. However, the question arises as to whether the agreement only applies to raw materials extracted in the EU, such as lithium from Sweden, or also to processed and recycled ones. Ultimately, the answer will determine how many raw materials we can sell to the US. I suspect that the volume will be limited.
That sounds rather meager …
Another important result is that subsidies are now to become more transparent on both sides of the Atlantic. There is to be a working group on this in the TTC. But that’s about it.
What’s next?
The important question of assembling the e-cars is still open. According to my information, it will continue to take place 100 percent in the USA. That’s why battery factories are also being built close to car factories – as is the case with Volkswagen, as they want to build a plant in Canada. This has to be discussed further in the TTC, where there is a task force. I hope that it will still be possible to relax the rules and I am waiting for guidelines from the EU Commission. They could come in a few weeks.
So the problem of migration to the US has not been solved?
No, it hasn’t been solved – on the contrary, investment continues to move toward the USA. I have already mentioned the example of Volkswagen. The Chilean e-fuel manufacturer HIF, on which Porsche also relies, also wants to build a large plant in Texas. We are losing out on these investments in Europe.
You referred to the possibility of a complaint before the World Trade Organization. Should the Commission now get serious?
It is still too early for that. When all the negotiations are finished, we will take stock. In its resolution on the IRA, Parliament noted the possibility of a lawsuit. However, we are in a dilemma here. After all, the EU has close geopolitical ties with the United States. On the other hand, lawsuits must also be possible between friends. Personally, I am very relaxed about this.
Another important topic at the talks in Washington was China. How do you assess the statements in the joint statement released by Biden and von der Leyen?
I was surprised by these statements. The statement contains a whole series of anti-China elements. It’s about non-market practices, but also about security policy – albeit rather indirectly, via a detour to Russia. The statements, which I did not expect to hear, evoke the risk of decoupling from China. We are already seeing the first steps along this path. Just think of the export controls for microchips that the Netherlands introduced under pressure from the US – without consulting the EU. Yet this is an EU competence. I am also concerned about the apparently planned control of investments in third countries – especially China. That was previously unthinkable.
In Berlin, they say they don’t want de-coupling, but de-risking. What do you think of that?
Of course it’s okay to look for and mitigate risks, for example in supply chains from China. However, the dependence is not as great as many believe. Only 0.2 percent of intermediate products and 1.4 percent of end products are clearly dependent on China. Conversely, Chinese manufacturers are also dependent on the European market. In addition, we have outsourced some of our production voluntarily. For example, 60 percent of our lithium is processed in China. But that’s mainly because the EU has outsourced its processing capacity – production is considered too dirty.
Against this background, many fears seem exaggerated to me. I advocate a rational approach to China. If the US wants to strengthen its own economic dominance, then we have to be clear! Decoupling makes no sense from a European perspective.
Shouldn’t that set off alarm bells, especially in Germany? After all, China is the most important trading partner, even ahead of the USA.
Of course, we have our own economic interests, and we have to defend them. But we in Europe have also already responded well to the new situation. We have set up a TTC working group against possible dangers in trade with China. And against the attempt to use trade as a weapon against Lithuania, we have jointly defended ourselves in the EU.
In all of this, however, the different interests must be taken into account. Europe must not allow itself to be overrun by the USA, as happened in the Netherlands. The problems with microchips must be tackled on a European, not a national, level. The discussion on this topic is not over yet!
Is the EU Commission leading us into a US-led anti-China coalition?
I wouldn’t make such a sweeping statement. Von der Leyen has obviously changed track. But not everyone in the commission is getting on board this train.
Council President Charles Michel also warns against blind allegiance to the United States.
Yes, there are intense discussions in Brussels about China policy. But nothing has been decided yet. Let’s wait for the legislative proposals first, and then the European Parliament will form an opinion.
Positioning within the German government is proving difficult, said a diplomatic source in Brussels. At press time, the coalition in Berlin has still not found a common line. The revision of the Industrial Emissions Directive (IED) is of great importance for Germany. The dispute is about amending a directive that has been in force for ten years: the issue is how to further reduce industrial pollutant emissions to air, water and soil. Of the 52,000 industrial plants affected across the EU, 13,000 are located in Germany alone.
The proposal drafted by the Swedish EU Council Presidency increases the threshold values above which livestock farms would fall under the directive. For example, the values for cattle, pigs and mixed farms were raised to 350 livestock units (LU) and for poultry to 280 LU – compared to 300 and 250 LU, respectively, in an earlier version. For livestock farms, the federal government has so far only been able to agree on 300 LSU for cattle, the diplomatic source added.
The president of the German Farmers’ Association, Joachim Rukwied, warned of the “serious consequences” of amending the directive. While the association stands by the currently applicable thresholds for testing emissions in pig and poultry farming, it rejects a further reduction in principle. This is because it would particularly affect small and medium-sized livestock farms and result in “a massive structural break”, says Rukwied.
Rukwied went on to say that an additional inclusion of cattle farming would not be technically feasible given the existing barns, which are almost exclusively naturally ventilated. The compromise proposal of the Swedish Council Presidency provides for a gradual lowering of the threshold values. In the view of the farmers’ association, this approach is not suitable for resolving the conflicting goals of animal welfare and emissions protection. Instead, it represents an exit from animal husbandry in installments, according to Rukwied.
For Christian Schaible, on the other hand, the discussion on intensive livestock farming is “completely misguided”. The head of the Zero Pollution Industry Division at the European Environmental Bureau (EEB) says: “First, the scope for cattle is to be softened to 350 livestock units, extensive livestock farming is completely out. Second, after all, there are not supposed to be any specific targets for farms before 2032“.
Schaible also highlighted the health and environmental impacts caused by livestock operations, which amount to €433 billion annually, according to the European Environment Agency. “Of that, a quarter, or €100 billion a year, is ‘Made in Germany’”, he explained. Expanding the scope to include a larger number of livestock farms would “lead to a reduction in methane and ammonia emissions” with corresponding health benefits worth more than €5.5 billion a year, according to the European Commission, Schaible added.
The revised IED is a key component of the Green Deal. It is designed to support the EU’s pollution prevention and circular economy goals, as well as energy policy, by helping to transform the industry. The new proposal will bring more facilities within the scope of the directive, particularly large capital-intensive plants that were not previously included, the diplomatic source said.
The proposal was negotiated for nearly a year in the Environment Council. In the process, some provisions on penalties and compensation for violations of the directive were deleted to make it easier to transpose the provisions into national law.
EU environment ministers will also exchange views on carbon capture certification at the meeting. Discussions are also planned on the proposal to revise EU legislation on packaging and packaging waste. They will also discuss a proposal to revise the Urban Wastewater Treatment Directive.
The Environment Council will be chaired by Romina Pourmokhtari, the Swedish Minister for Climate and Environment. The European Commission will be represented by Executive Vice President Frans Timmermans and Environment Commissioner Virginijus Sinkevičius. with Lukas Scheid
What is the best way to guarantee media freedom in Europe? In the past, different member states gave very different answers to this question. And some have explicitly little interest in freedom of the press. This is precisely what EU Vice President Věra Jourová wants to change, which is why she has launched a regulation with the Media Freedom Act (MFA). It was clear early on that its contents would be contentious. The parties involved are arguing not least about the legal basis chosen and the legal instrument.
In an interview with Table.Media, Sabine Verheyen (CDU), the European Parliament’s rapporteur, sharply criticizes the Commission’s proposal. Creating a generally applicable European solution out of many individual problems in the member states would not work by way of a regulation. The legal basis chosen (the internal market clause) and the way in which the regulation is used are problematic, particularly in combination.
“I’m trying to save this piece of legislation”, Verheyen tells Table.Media. “Because of the treaties, because of the Amsterdam Protocol”. Safeguarding media diversity, she says, is an explicit matter for the member states, in Germany precisely the federal states, as stipulated in the protocol declaration to the Amsterdam treaties. This does not mean that no regulation can be found at the European level. But the instrument of the regulation would automatically lead to problems. There is a risk of lawsuits against the regulation and ambiguities that could be avoided with a directive.
Enforceability is also more difficult with a regulation, says Verheyen. She would therefore like to turn the MFA regulation into two pieces of legislation: “I think it would make more sense and be more legally secure to really split it into a regulation and a directive instead of a regulation with opening clauses”. The EU Commission would have to propose such a directive, as it alone has the right of initiative.
Most recently, the Spanish shadow rapporteur in the CULT Committee Diana Riba i Giner (Greens/EFA) expressed her doubts about the project in “Contexte”: The example of the Audiovisual Media Services Directive (AVMSD) shows that the member states have not yet implemented it in some cases. Verheyen and her Social Democratic colleague Petra Kammerevert had opened this discussion. Whether the idea of a split is even a possibility, however, has not yet been clarified even with the EPP and S&D groups.
“You could remodel parts of the regulation into a directive with an implementation period of one year“, counters Verheyen. The Media Freedom Act would have to be split up for a proper solution: “Then we could leave the areas that are less critical to consider as far as the Commission’s competence is concerned and that have real internal market relevance or fundamental rights relevance as a regulation and transfer the other parts into a directive”.
Verheyen has very specific ideas about which regulations would be better transferred to a directive. She also sees a problem with the implementation of the AVMS Directive in national law. However, the MFA Regulation does not really offer a solution to this problem – the Commission will have to initiate infringement proceedings to increase the pressure.
The Commission’s MFA Regulation proposal would also deviate from the AVMSD in important places, such as the requirements for public broadcasting. Here, both the AVMS Directive and the MFA proposal contain requirements for supervisory bodies and their independence.
The Council’s Audiovisual Working Group also discussed a possible split. However, the proposal failed, at least for the time being: On the side of Germany, for which the federal states are responsible, only Poland wanted to support the proposal on Tuesday, reports “Contexte”.
After the Bundesrat had already taken a stand on the Media Freedom Act with a subsidiarity complaint, criticism has now also come from the Commission on Concentration in the Media (KEK). In Germany, the KEK is the body responsible for ensuring diversity of opinion on private television.
Media supervision in Germany has proven its worth in terms of protecting and guaranteeing an independent, diverse and free media landscape, says CEC Chairman Georgios Gounalakis. “The Media Freedom Act can establish this level of protection throughout Europe. However, the cornerstones for this must be the principle of state neutrality and a commitment to independent media and supervisory structures”.
The CEC thus criticizes above all the planned structure of supervision under the Media Freedom Act: “The possibilities for the EU Commission to exert influence, as provided for in the Media Freedom Act, contradict the principle of independent and non-governmental media supervision”, criticizes Gounalakis. The media are “not only an economic asset but also a cultural asset”. But that is precisely what the Commission is not responsible for.
It remains to be seen whether Verheyen will be able to push through her plan for a supplementary directive. Above all, the timetable is an obstacle a good year before the European elections. In order for the procedure for the Media Freedom Act to proceed in an orderly manner, it would have to be finally discussed in Parliament by October at the latest to allow sufficient time for the trilogue.
The LIBE and IMCO committees would have to submit their reports before the end of May. The Council has also not yet made much progress in its deliberations – it is waiting for a legal opinion from the Legal Service on the legal basis, among other things.
The French Loi de Vigilance (LdV) is the first law of its kind in the world: It has been in force since 2017 and obliges large French companies to exercise human rights due diligence in their global value chains. Obligated companies must draw up and publish plans for dealing with human rights and environmental risks worldwide throughout their value chain. In the event of violations of this obligation, affected parties can take legal action in French civil courts, demand rectification and, if there is a causality between the breach of duty and damage, also claim damages.
The first judgment under this law now shows that a good law alone does not necessarily help the people it is intended to benefit. What matters is the application and interpretation of a law.
In 2019, two French and four Ugandan organizations filed the first lawsuit under the LdV. It was directed against the French oil company TotalEnergies for neglecting its human rights and environmental due diligence obligations at its mega oil pipeline Eacop (East African Crude Oil Pipeline) in Uganda and the Tilenga project in Tanzania.
The world’s longest heated oil pipeline, which TotalEnergies is building together with state-owned companies from China, Uganda and Tanzania, will connect the oil fields in western Uganda and, in particular, oil wells in Uganda’s Murchison Falls nature reserve with the Indian Ocean. At stake for TotalEnergies and its partners is a billion barrels of crude oil with a current value of $80 billion. Climate researchers have calculated that the project’s climate footprint over its entire lifetime will be 25 times the current CO2 annual emissions of Uganda and Tanzania combined.
The plaintiffs accuse TotalEnergies of displacing more than 100,000 people from their land for the pipeline without adequate compensation and acting without regard for the endangered species living in the protected area. They argued that the court should require TotalEnergies to design its existing oil production and pipeline plans in accordance with its obligations under the LdV and to take adequate measures to address human rights risks.
TotalEnergies should also pay compensation to affected communities. In civil summary proceedings, the court should suspend the project until the associated risks are properly identified and the necessary measures to end human rights abuses and prevent an environmental disaster are implemented.
On Feb. 28, 2023, the court in Paris dismissed the action in these summary proceedings. It based its decision on formal arguments. The plaintiff organizations had not complied with the procedure because they did not repeatedly file a formal complaint against newly drawn up due diligence plans of the company after filing the lawsuit and, at the same time, presented facts in the oral hearing at the end of 2022 that occurred after 2019.
Moreover, in summary proceedings, the court could only examine whether the company had drawn up due diligence plans at all in accordance with the LdV, which had happened in the specific case. Whether these plans meet the substantive requirements of the LdV would have to be clarified in ordinary proceedings.
This ruling raises the question: Are French courts capable of dealing with the problems of global value chains? Or do the NGOs have excessive expectations, as TotalEnergies’ lawyer suggests when he claims that they are seeking a “Marxist” interpretation of the law?
In its decision, the court does not take into account the international framework in which the law was created. The LdV is a law that transposes international standards of human rights due diligence for companies into national law. According to the UN Guiding Principles, the aim is to take appropriate measures to prevent and minimize human rights risks.
It is not a matter of simply creating a due diligence plan. By focusing on the creation of a due diligence plan, the court formalizes a duty that is about an effort to take the most appropriate action in the specific context.
The purpose of due diligence laws such as the LdV is to have a preventive effect, i.e. to prevent human rights violations. In the interpretation of the Paris court, the summary proceedings, which are actually intended to have an equally preventive effect, cannot have any suspensive effect on the merits of the case. The entire procedure thus runs practically empty.
On the one hand, the plaintiffs can now appeal against this decision in summary proceedings to the second instance, which will take several years. Or they can try to get justice in the main proceedings. But this, too, will take time. By the time there is a final ruling, the pipeline project will probably be fully operational and the damage to the environment and to very many people will already have been done.
Miriam Saage-Maaß is a lawyer and Legal Director at the European Center for Constitutional and Human Rights (ECCHR), where she established the Business and Human Rights Program Area. She has worked on various court cases against companies related to the exploitation of workers in Bangladesh and Pakistan.
