Can EU market law protect media freedom and pluralism?

A legal analysis argues that the European Union can embed democracy, freedom of expression and media pluralism in internal market legislation without creating a general power to regulate everything. The study uses the European Media Freedom Act as its central case, concluding that the law legitimately combines the removal of barriers to cross-border media activity with safeguards for editorial independence and plural public debate. It is a doctrinal and legislative-process analysis rather than an empirical study of media outcomes, and it reaches no conclusion about whether the act will succeed in practice. Its central legal test is whether the EU acted within the powers assigned to it by the Treaties when legislators based the 2024 regulation on the internal market provision in Article 114 of the Treaty on the Functioning of the European Union.

The starting point is Article 2 of the Treaty on European Union, which describes the Union as founded on respect for human dignity, freedom, democracy, equality, the rule of law and human rights, including the rights of members of minorities. These values are not merely aspirational. In its 2026 ruling in Commission v Hungary, the Court of Justice of the European Union described them as inherently legally binding and as part of the identity of the Union as a common legal order. The analysis interprets that judgment as imposing duties on both member states and EU institutions: they must respect and maintain the Union’s values and actively promote their effective protection. Article 2 nevertheless cannot itself serve as the legal basis for EU legislation. The Union has no general competence to enact a values policy, and every legislative measure must remain attached to a competence expressly granted by the Treaties.

Here, the study compares Article 2 with horizontal clauses already embedded in EU primary law, including provisions on gender equality, environmental protection, consumer protection and animal welfare. These clauses generally direct EU institutions to accommodate cross-cutting objectives while exercising the powers they already possess, rather than enlarging those powers. The Charter of Fundamental Rights follows a similar structure: Article 51 requires the institutions to respect Charter rights and promote their application, but it also states that the Charter does not modify the Union’s competences. Read in this way, Article 2 acts as constitutional guidance for legislation across policy areas, including fields such as culture or fundamental rights where no separate power to harmonize national law exists.

Internal market law provides a particularly important setting because its central function is to remove obstacles to trade and distortions of competition, yet its history has never been exclusively economic. Article 114 TFEU requires the Council, Parliament and Commission to take a high level of health, safety, environmental and consumer protection as a base when adopting internal market measures. Court of Justice case law, including the Tobacco Advertising judgment, also shows that an internal market measure may pursue a public-interest objective alongside its market objective when those aims are inseparably linked. The legal-basis choice is governed by objective factors such as a measure’s aim and content. Where a values objective has no compatible harmonizing legal basis, Article 114 may remain available if the measure genuinely improves the internal market and the reliance is adequately justified.

The European Media Freedom Act illustrates how this flexible approach operates in the media sector. Regulation (EU) 2024/1083 requires member states to protect editorial freedom and independence, safeguard journalistic sources and confidential communications, and secure the editorial and functional independence of public service media. It also introduces ownership transparency, editorial safeguards, concentration-assessment procedures for media markets, transparent rules for public funding and state advertising, and protection against unjustified removal of media content by very large online platforms. A new European Board for Media Services is tasked with promoting consistent application of the rules and supporting the Audiovisual Media Services Directive. These provisions translate abstract values into operational legal duties while leaving member states substantial discretion over implementation.

The Commission’s original proposal justified the internal market basis by identifying divergences among national systems affecting media freedom, pluralism, public-service media, state advertising and audience measurement. The analysis emphasizes that these differences were not presented merely as cultural or political concerns. They were linked to legal uncertainty, higher costs, protectionist barriers, distorted allocation of advertising revenue and obstacles to cross-border investment. The Commission’s impact assessment was revised twice, with particular attention given to documenting market failures, explaining the Article 114 legal basis and demonstrating subsidiarity. In the Council, the Legal Service accepted the overall internal market rationale but requested stronger justification for some provisions, including rules on public service media funding and media-market concentrations.

That exchange illustrates how competing objectives are reconciled procedurally. Article 114 TFEU does not expressly mention media freedom or pluralism, unlike its reference to health, environmental and consumer protection. The Council’s Legal Service nevertheless reasoned that approximation under Article 114 may include public-interest policies pursued by national systems. Because the Treaty excludes harmonization in the cultural field, an internal market basis could also support action addressing common values when no other compatible basis existed. The analysis concludes that this is not a claim that market-building effects are merely decorative. The enacted law ties them directly together: fragmented rules that impede cross-border media provision and unequal competition are presented alongside risks to editorial independence and pluralism.

The final regulation made that connection more explicit than the original proposal. Its first article states two coequal aims: ensuring the proper functioning of the internal market for media services and safeguarding the independence and pluralism of those services. Recitals identify media freedom and pluralism as pillars of EU democracy and the rule of law, while also recognizing the growing importance of online platforms, the decline of traditional advertising revenues and the cross-border reach of digital media. The law is deliberately closer to a baseline framework than a complete code. Member states may retain or introduce additional measures, including stricter protections, provided those measures comply with EU law and respect national cultural diversity, constitutional arrangements and the division of responsibility for public service media.

The analysis presents the EMFA as a qualified internal market whose market and values dimensions cannot be treated as mechanically separable. Its legal significance extends beyond media regulation: values-based legislation can make the Union’s commitments enforceable through specific duties that national authorities and, in some cases, the Court can assess. But the method also has limits. Article 2 does not specify how far values should be integrated, which policy should receive priority or what the resulting rules should contain. Those choices remain political and institutional. The study also cautions that mainstreaming values through market law can produce an economically oriented interpretation because internal market competences are designed around trade and competition. Institutional negotiation, participation and transparency therefore influence whether values are merely referenced or meaningfully operationalized.

Hungary has challenged the EMFA on several grounds, including the choice of legal basis, the principle of conferral, subsidiarity, proportionality, national identity, legal certainty and legislative clarity. It also seeks annulment of particular provisions, including aspects of public service media independence, media providers’ rights and duties, national regulators and the European Board for Media Services. The pending case is therefore a test not only of individual media rules but of whether Article 2 TEU can guide EU lawmakers across established policy fields. If the Court accepts that the EMFA’s two stated objectives are inseparably linked, the challenge could clarify when internal market legislation may protect democracy and pluralism without exceeding EU competence. The study itself does not predict the judgment or measure the act’s effects. It concludes instead that the law offers a workable model whose practical value will depend on judicial scrutiny, national implementation and any later revisions prompted by evidence of gaps or unintended consequences.

Subject of Research: Legal analysis of the European Media Freedom Act as values-based EU internal market legislation

Article Title: Legislating on the Union's values: the ‘openness’ of internal market law and the case of the European Media Freedom Act

Article References: Psychogiopoulou, E. (2026). Legislating on the Union's values: the ‘openness’ of internal market law and the case of the European Media Freedom Act. Frontiers in Communication, 11, Article 1862005. https://doi.org/10.3389/fcomm.2026.1862005

Image Credits: AI Generated

DOI: 10.3389/fcomm.2026.1862005

Keywords: European Media Freedom Act, EU internal market law, media freedom, media pluralism, Article 2 TEU, freedom of expression, Article 114 TFEU, European Union law, public service media, Legislating, Union's, values