WRITTEN QUESTION E-1408/01

by Benedetto Della Vedova (TDI) to the Commission

(11 May 2001)

Subject: New legal provisions concerning publishing and publishing services adopted by the Italian Parliament

The Italian Parliament has recently adopted new legal provisions regarding publishing and publishing services together with amendments to Law No 416 of 5 August 1981 (Law No 62 of 7 March 2001, published in Official Gazette No 67 of 21 March 2001).

The first paragraph of Article 1 of the new law gives a very wide definition of publishing services establishing full equivalence between electronic and traditional publishing. The third paragraph establishes that all publishing services are, depending on their nature, subject to provisions of either Article 2 or Article 5 of Law No 47 of 1948 regarding printed matter and, consequently, Law No 69 of 3 February 1963. These new provisions extend the serious restrictions on freedom of expression and dissemination of ideas (compulsory registration with court authorities and supervision by a registered member of the Association of Journalists) to a large number of web publications which have to date provided a comprehensive and free source of information for Internet users.

One of the objectives of the new provisions, under Article 3 of law 62/2001 is moreover, to extend to electronic press organs meeting the same conditions as those applicable to traditional publications the possibility of receiving State aids.

In addition to making information sources more accessible and pluralist, the development of electronic publishing removes the link which still exists with regard to traditional publishing between the place of publication/dissemination of information and the place in which it is received by users, thereby establishing the necessary bases to overcome national barriers and create a genuinely integrated European market in publishing services. In view of this, does the Commission not consider that by imposing the serious restrictions contained in Italian Laws No 47 of 8 February 1948 and No 69 of 3 February 1963 to Internet publishing activities, the new measures referred to above undermine the provisions establishing the Community internal market, in particular those prohibiting restrictions on freedom to provide services?

Does the Commission not consider also that, by granting State aids to publishers able to meet the requirements laid down in Laws No 47/1948 and No 69/1963 and imposing such binding restrictions (which do not exist elsewhere under European legislation) on Italian on-line publishers, the new rules constitute a severe distortion of competition affecting a substantial section of the Community publishing market?

Answer given by Mr Bolkestein on behalf of the Commission

(23 July 2001)

Although there is no specific harmonisation of electronic publishing at Commuity level, it represents an information society service in that it is provided remotely and electronically and at the request of a recipient of services. It is thus as a rule covered by the directive on electronic commerce(1), which is based on the principle of the country of establishment of on-line operators.

In view of the major implications in cross-border terms, this particular field is carefully monitored by the Commission. In particular, the Commission will continue to heed the parties involved and especially operators who, because they are established in Italy, are subject to the new Italian rules, in order to ensure that there is full respect for freedom of movement within the internal market and especially the free movement of on-line services, to which the Honourable Member refers.

In accordance with the case law of the Court of Justice(2), restrictions on the exercice of economic activities with regard to the freedom of establishment (Article 43 (ex Article 52) of the EC Treaty) and the free movement of services (Article 49 (ex Article 59)) which are basic freedoms that must be directly applied in the national legislation of the Member States must satisfy four conditions if they are to comply with the requirements of the EC Treaty.

I.e.:

- they must be applied in a non-discriminatory manner;

- they must be justified by imperative requirements in the general interest;

- they must be suitable for securing the attainment of the objective which they pursue;

- they must not go beyond what is necessary in order to attain it.

The interpretation and practical application of the new legislation by the Italian authorities will make it possible to obtain a reasonable picture of its actual scope as far as the requirements of need and proportionality laid down by the EC Treaty are concerned.

It will also be possible to make an analysis in connection with the new Internal Market Strategy for Services, recently launched by the Commission(3).

As for the State aids which the Honourable Member mentions, the Commission has no knowledge of any new aid facility for certain publishers.

(1) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000).

(2) See judgement of 9.3.1999 in case C-212/97.

(3) COM(2000) 888 final.