home . about the EPC . press centre . fact sheets . issues . members' area . links

< back to issues: jurisdiction and applicable law

Issues

Rome II joint publishers and journalists' letter to Members of EP Committee for Legal Affairs, 15 December 2006

For the attention of the Members of EP Committee for Legal Affairs

Brussels, 15th December 2006

Subject: Second reading on Rome II - draft Report of Diana Wallis (UK, ALDE)

European Publishers and Journalists organisations call on MEPs:

• To exclude violation of privacy and rights of the personality from the scope of Rome II and
• Oppose a specific review clause
• Thereby avoiding conciliation reopening the discussions on a possible new compromise which will be subject to protracted negotiation and place press freedom in a fragile situation.

We recommend MEPs to vote as follows:

• - Amendment 14 of Diana Wallis = Reject
• - Amendment 19 of Diana Wallis = Reject
• - Amendment 37 of Klaus-Heiner Lehne => Adopt
• - Amendment 38 of Gabriele Stauner = Reject
• - Amendment 39 of Piia-Noora Kauppi => Adopt
• - Amendment 9 of Diana Wallis = Reject

Full letter of explanation attached:

Brussels, 15th December 2006

Dear Member of the European Parliament,

Next week, you will vote on the report of Diana Wallis and the amendments tabled on Rome II - the draft regulation on applicable law to non-contractual obligations.

The undersigned publishers and journalists' organisations would like to bring to your attention the need to ensure that press freedom is not jeopardised during the vote on Rome II, in particular with regard to violation of privacy and rights related to the personality (defamation).

EFJ, ENPA, EPC, FAEP and FEP have all supported the constructive step forward made by the European Parliament during first reading. An amendment adopted on Article 6 in July 2005 - tabled by the Rapporteur and the main political groups and passed with a substantial majority, represented a balanced approach for both the media and the private individuals. It would have ensured legal certainty for journalists and publishers and, we believe, would have facilitated their daily work of providing information to citizens on a wide variety of subjects without having to second-guess the law in multiple jurisdictions.

We share the Rapporteur's regret that the European Commission did not take into account the strong majority vote of the European Parliament in its modified proposal by including the EP amendment but instead excluding such provisions from the scope altogether.

We noted that in September 2006, after much negotiation, the Council adopted a similar position to the one of the Commission deciding to exclude explicitly violation of privacy and rights of the personality from the scope of Rome II. These protracted discussions have confirmed the difficulties of addressing this issue within Rome II without damaging editorial freedom as applied in each of the different Member States.

In analysing these decisions of the Council and the European Commission, EFJ, ENPA, FAEP, FEP and EPC have come to the conclusion that in the absence of a rule which protects editorial independence an exclusion of violation of privacy and rights related to the personality would be the most realistic option for the media, journalists and citizens.

We fear that by re-tabling and passing Parliament's first reading amendment, conciliation would ensue, thereby re-opening the whole issue. Due to the Member States' divergent positions, and the Commission's intransigence, conciliation would open the door for further compromises on Article 6, which would lead to an outcome that would be unacceptable to journalists and publishers by exposing the press to court actions under the laws of different member states regardless of the law and country of publication.

Despite our complete support for the EP amendment voted in Plenary, in our view and in the current political context, exclusion seems to be the only politically viable option.

• During the ALDE seminar on October 17, several academics and lawyers indicated, that an absence of a rule in this field does not seem to present practitioners with a major problem, especially as media and journalists prefer to stay with their national law, even if this law is less favourable to them, but what matters is legal certainty. For the time being, it seems preferable to let the Court and the judges do their work in this field, especially as this is what judges, practitioners, media and journalists are asking for, instead of establishing a rule of applicable law that may impede press freedom. In our understanding, the conclusion of academics and practitioners at the ALDE seminar was to leave the issue of defamation alone and to allow case law to develop in the very rare cases of cross-border disputes.
• We also noted that the European Commission has publicly, on several recent occasions, mentioned the insignificant number of cross-border cases in this field. Since the beginning of the debate in 2002, the media has been arguing that EU intervention in the area of applicable law to violation of privacy and rights to the personality is not justified in terms of the criteria for the proper functioning of the Internal Market which is needed to justify EU action in the field of the media. It is thus questionable whether dealing with this matter in this particular piece of legislation is compatible with the legal basis of Rome II, which is Article 65 of the EC Treaty specifying: "measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken ... in so far as necessary for the proper functioning of the Internal Market, shall include: promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws..."
• Finally, the European Commission has asked the University of Heidelberg to produce a study in view of the forthcoming revision of the Brussels I regulation (which deals with choice of jurisdiction in cross border disputes), which is due in 2007. In this context it therefore seems useful to consider first the revision of the Brussels I regulation before determining an applicable law which may impact the place of jurisdiction.

Therefore we are recommending that you endorse the complete exclusion of violation of privacy and rights of the personality from the scope of Rome II and avoid reopening the discussions through conciliation of a possible new compromise which place press freedom in a fragile situation.

The undersigned European publishers' organisations and journalists' federation:

Valtteri Niiranen - European Newspaper Publishers' Association (ENPA)
Director

Angela Mills Wade - European Publishers' Council (EPC)
Executive Director

Aidan White - European Federation of Journalists (EFJ)
General Secretary

David Mahon - European Federation of Magazine Publishers (FAEP)
Director

Anne Bergman-Tahon - Federation of European Publishers (FEP)
Director

Alain Chastagnol - Presse-Liberté
Secrétaire Général

back to top

For any information, please contact:

ENPA - Sophie Scrive
European Newspaper Publishers' Association
Rue des Pierres 29 bte 8
1000 Bruxelles
Belgique
Phone : 32 2 551 01 90
Fax : 32 2 551 01 99
Email: sophie.scrive@enpa.be

EPC - Angela Mills Wade
European Publishers Council
26 Avenue Livingstone
1000 Brussels
Phone: 32 2 231 1299
Fax: 32 2 230 7658
Email: angela.mills@wade.uk.net

EFJ - Renate Schroeder
European Federation of Journalists
Residence Palace
Rue de la loi 155
1040 Brussels
Phone : 00 32 2 235 22 16
Email : renate.schroeder@ifj.org

FAEP - David Mahon
European Federation of Magazine Publishers
Boulevard de Waterloo 36
1000 Brussels
Phone : 00 32 2 536 06 02
Fax : 00 32 2 536 06 01
Email: david.mahon@faep.org

FEP- Anne Bergman-Tahon
Federation of European Publishers
Rue Montoyer, 31 - bte 8
1000 Brussels
Phone: 32 2 770.11.10
Fax: 00 32 2 771.20.71
Email: abergman@fep-fee.eu

Presse-Liberté - Alain Chastagnol
23, rue Baudin
92534 Levallois-Perret Cedex
Phone: +33 1 41 34 62 05
Email: achastagnol@hfp.fr

back to top