DRAFT PROPOSAL FOR AN EU COUNCIL REGULATION PROPOSED BY THE DENIS DIDEROT COMMITTEE

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15.5.2022

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This text proposed by the Denis Diderot Committee to should be considered as a blueprint. At this step, the text has not been commented by lawyers. It is an adaptation, mutatis mutandis of the EU Decision on RT and Sputnik of the 2 March 2022 even if it sense is fundamentally different : the issue is not on banning channels but on liberating satellites capacities  to be attributed to democratic TV channels in order to provide the Russian citizen with an alternative view of the war in Ukraine and its international consequences.

 

This proposal obviously needs to be improved by competent lawyers outside and within the EC and to be accepted by the EC and then by the EU Member States within the European Council.

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COUNCIL REGULATION (EU) 2022/XXX

of  XXX 2022

amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine

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THE COUNCIL OF THE EUROPEAN UNION,

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Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,

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Having regard to Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (1),

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Having regard to the joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,

Whereas:

(1) On 31 July 2014, the Council adopted Regulation (EU) No 833/2014 (2).

 

(2) Regulation (EU) No 833/2014 gives effect to certain measures provided for in Council Decision 2014/512/CFSP (3).

 

(3) On 1 March 2022 the Council adopted Decision (CFSP) 2022/351, amending Decision 2014/512/CFSP and imposing new restrictive measures against Russian media outlets engaged in propaganda actions.

 

(4) In its conclusions of 24 February 2022, the European Council condemned in the strongest possible terms the Russian Federation's unprovoked and unjustified military aggression against Ukraine. By its illegal military actions, Russia is grossly violating international law and the principles of the United Nations Charter, and undermining European and global security and stability. The European Council called for the urgent preparation and adoption of a further individual and economic sanctions package. The European Council called on Russia and Russia-backed armed formations to stop their disinformation campaign.

 

(5) In its conclusions of 10 May 2021, the Council underlined the need to further strengthen the Union’s and Member States’ resilience as well as their ability to counter hybrid threats, including disinformation, ensuring the coordinated and integrated use of existing and possible new tools for countering hybrid threats at Union and Member States’ level, and possible responses in the field of hybrid threats including, inter alia, to foreign interference and influence operations, which may cover preventive measures as well as the imposition of costs on hostile state and non-state actors.

 

(6) The Russian Federation has engaged in a systematic limitation of freedom of expression for its own citizen and foreign media outlets

 

As a result of the new legislation, foreign media outlets have encountered great difficulties to continue their normal work for covering events in the Russian society and politics.

 

 

(7) In order to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at  civil society in the Union and neighbouring countries and on its own civil society, gravely distorting and manipulating facts and favouriting statements of legitimization of aggression against Ukraine, offensive remarks towards Western States, collectively treated as Nazis, Incitement to the assassination of foreign leaders visiting Ukraine, Incitement to the creation of concentration camps for opponents to the war in Ukraine.

 

(8) Those propaganda actions have been channelled through a number of TV channels and pay-TV platforms under the permanent direct or indirect control of the leadership of the Russian Federation.

 

(9) Those media outlets are essential and instrumental in bringing forward and supporting the aggression against Ukraine, and for the destabilisation of its neighbouring countries.

 

Access to the market for foreign media outlets, in particular international news channels was made impossible by legislation and by unilateral decision of pay-TV  platforms providing bouquets of channels to owners of satellite dishes, cable and IPTV networks. In this way, the Russian Federation has ceased to respect its commitments in terms of respect for freedom of expression and free circulation of information.

 

 

(10) In view of the gravity of the situation, and in response to Russia’s actions destabilising the situation in Ukraine, it is necessary, consistent with the fundamental rights and freedoms and the principle of free flow of information recognised in the UN Declaration of Human Rights (article 19), International Covenant on Civil and Political Rights (ICCPR) (articles 19 and 20), Helsinki Final Act and derived documents (Concluding Document of the OSCE Vienna Meeting, Moscow Document, Istanbul Charter In the Istanbul Charter for European Security of 1999, Astana Commemorative Declaration In the Astana Commemorative Declaration: Towards a Security Community of 2010, OSCE Ministerial Council Decision on Safety of Journalists In their Decision Nr. 3, Safety of Journalists, of 7 December 2018, European Convention for the Protection of Human Rights (Ratified by the Russian Federation in May 1998 and of which the Federation will be Party till 16 September 2022, European Convention on Transfrontier Television (signed by the Russian Federation the 4 October 1996) and quoted in the Amended EUTELSAT IGO Convention 2001 to urgently put at the disposal of the international news broadcasters satellites capacities allowing them to reach a substantial part of the Russian population, in particular those part of the population not having access to the Internet.

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From various investigations, press reports, satellite tracking services and  statements by companies executives, it appears that the French satellite company Eutelsat S.A., operating under the Amended Convention  EUTELSAT IGO (entered into force on a definitive basis on 28 November 2002 and  applicable to all its Member States)  and French Loi no 2008-518 du 3 juin 2008 relative aux opérations spatiales provides satellite capacities on its satellites Eutelsat 36E B and Eutelsat 36E C and on rented capacities on two Ekspress satellites owned by the RSCC company to two Russian pay-TV platforms NTV Plus (operated by the company NTV Plius OOO, part of the Gazprom Media Holding) and Trikolor (National Satellite Company, NJSC). Those two companies maintain close relations with the Russian government. While NTV+ is state owned, Trikolor recently requested financial support from the government and from the Duma. Both companies broadcast to a public estimated to 15 million households various bouquets of TV and radio channels, including those with outrageous war propaganda and regular statements that should be considered as gravely distorting and manipulating facts and favouring statements of legitimization of aggression against Ukraine, offensive remarks towards Western states, collectively treated as Nazis, incitement to the assassination of foreign leaders visiting Ukraine, incitement to the creation of concentration camps for opponents to the war in Ukraine.

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They have ceased to propose in their packages eight international news channels, six of them being operated by broadcasters established in the EU, depriving the Russian citizens of a diversified, pluralistic and contradictory information on the war in Ukraine and its international consequences.

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One of these platforms continue to transmit, through Eutelsat capacities, the channels RT News and RT DE, prohibited by the Decision of the Council of the 2 March 2022.

The two platforms should therefore be considered as integrated in the Russian war propaganda strategy.

The rationale of the decision is not censor the activities of channels under the authority of the Russian Federation but to liberate capacities of European satellites designed to reach the Russian market in order to restore a free flow of information and the existence of a contradictory, pluralistic and free information without war propaganda and organised disinformation.

 

(11) The measures fall within the scope of the Treaty and, therefore, in particular with a view to ensuring their uniform application in all Member States, regulatory action at the level of the Union is necessary.

 

(12) Regulation (EU) No 833/2014 should therefore be amended accordingly,

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HAS ADOPTED THIS REGULATION:

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Article 1

Regulation (EU) No 833/2014 is amended as follows:

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(1) the following Article is inserted after Article 2e:

‘Article 2f

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It shall be prohibited for satellite operators established in a EU country  to rent, lease or sell satellite capacities on their own satellites or on satellites capacities owned by an operator from a third country to broadcasters or to pay-TV operators contributing to the Russian war propaganda effort related to the Russian war in Ukraine. 

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Any sale or rental of satellite transmission capacities ,  provision of services, as well as equipment funding or credit, arrangement with the legal persons, entities or bodies listed in Annex XV shall be suspended.’;

 

(2) Article 11(1), point (a), is replaced by the following:

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‘(a) legal persons, entities or bodies listed in Annex III, IV, V, VI, XII, XIII, XIV or XV, or referred to in point (b) or (c) of Article 5(1), in point (b) or (c) of Article 5(2), in point (c) or (d) of Article 5(3), in point (b) or (c) of Article 5(4), in point (a), (b) or (c) of Article 5a, or in Article 5h;’;

 

(3) Article 12 is replaced by the following:

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‘Article 12

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation including by acting as a substitute for natural or legal persons, entities or bodies referred to in Article 2e(3) or Article 2f, 5, 5a, 5b, 5e, 5f or 5h, or by acting to their benefit by using the exceptions in Article 2e(4), 5(6), 5a(2), 5a(5), 5b(2), 5b(3), 5e(2) or 5f(2).’;

 

(4) the text appearing in the Annex to this Regulation is added as Annex XV to Regulation (EU) No 833/2014.

 

Article 2

This Regulation shall enter into force on the date of its publication in the Official Journal of the European Union.

 

This Regulation shall be binding in its entirety and directly applicable in all Member States.

 

Done at Brussels XXX

For the Council

The President   XXX

 

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(1)  See page 2022/351 of this Official Journal.

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(2)  Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 1).

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(3)  Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 13).