7 May 2008

State Schizophrenia

I’m publishing Marco Travaglio’s article called "Europa7, lo Stato copia Mediaset" {Europa7, the State copies Mediaset}.

Today the Council of State, after 9 years of legal battles in Italy and in Europe, will decide the amount to be paid by the State in recompense to Europa7 for the failure to assign frequencies to them and whether to finally let them broadcast nationally. In the discussion, the government is represented by the State Advocacy Service. They have surprisingly been given the task by the Minister of Communications, Paolo Gentiloni and asked to reject the requests of the publisher Francesco Di Stefano and to defend the status quo: that is the Gasparri law and the right of Rete4 to occupy the frequencies even without a concession (lost by Mediaset and won by Europa7 in 1999).


A fact that is quite individual: the Unione had promised to repeal the Gasparri law and on 31 January the European Court of Justice gave its support to the rights of Europa7 against those of Rete4. But that’s not enough. To defend Rete4, the State Advocacy Service representing the Prodi government copied in its memo, whole pages taken from that of the Mediaset lawyers. . Not to cite their hypotheses in inverted commas. But to take them on as their own, without even giving details about where they came from. The Berlusconi group officially is not one of the parties to the discussion: Europa7, for the failure to assign the frequencies, has cited the State through the Ministry of Communications and the Authority overseeing Communications. But Mediaset intervened anyway with a memo, knowing well that, if the frequencies were to be assigned to Europa7, it would be Rete4 to lose them. And the State Advocate, Maurizio Di Carlo, what does he do? Cut and paste of the Mediaset memo, without even trying to camouflage this authentic privatization of the institution at the service of the “Biscione”. The whole thing, even before Berlusconi is back in government for the third time.

Read and compare the memo by the State Advocacy Service (55 pages) and by Mediaset (78 pages). The complete text is given on www.voglioscendere.it. It’s a tragicomic party game of “Spot the difference”. The most obvious is that the State defends Rete4 with even more passion than Mediaset does. For the rest, page after page plucked exactly as it is from the documents of the Berlusconian company. A few examples: Pagine 9 of the State Advocacy document: ten lines (from 7 to 17) copied from page 49 of the Mediaset memo (lines 1-15). Page 5 (from line 20) to Page 6 (up to line 18) of the State Advocacy are identical to pages 60 (from line 3), 61 (all the page) and 62 (up to line 11) in the Mediaset document. Pages 17 (from line 7) and 18 (up to line13) of the State Advocacy document are the same as pages 60 (from line 3), 61 (all the page) and 62 (up to line22) in the Mediaset document. Page 53 (lines 4-23) State Advocacy document is plagiarized from pages 39 (from line 9) and 40 (up to line5) in the Mediaset document. On page 35 (lines 27-31) of the State Advocacy document, there are the same words as on page 47 (lines 17-22) in the Mediaset document. And so on. Once there’s a “thus” missed out. In another place there’s a “in relation to this” instead of “firstly”. All the rest, including erroneous punctuation (many commas between the subject and the verb), is identical. The same is true for the conclusions with outcomes that are at times comical.

According to the State Advocacy Service, if Europa7 has not had the frequencies, it’s their fault: they should have “acquired them even on their own initiative” (and where? And how? With weapons in their hands?), given that the State: “didn’t have the actual availability of the frequencies” (obviously: they allowed them to be kept by Telepiù nero and Rete4, by now without the concession). And anyway – Di Carlo added – by dis-applying the Maccanico law and the Gasparri law and turning off the analogue frequencies for Rete4 would not mean the automatic transfer to Europa7 (and to whom, thank you?).

Basically the State is ignoring the recent verdict of the European Court in Luxembourg, requested by the very same Council of State, according to which the community regulations “are an obstacle to a national system of regulations whose application means that an operator that owns a concession finds it impossible to transmit because a lack of frequencies assigned on the basis of objective criteria, that are transparent, non-discriminatory and proportional.”

Thus, it’s enough that the “transitory regime set up in favour of the existing networks” to the disadvantage of Europa7, in accordance with the Maccanico law, of the “save-Rete4”, of the Gasparri law, of the Gentiloni draft law (that never became law). All the laws that should be repealed.
They are not: “the free provision of services” protected by community regulations – writes the European Court – “they need not just the concession of the authorisation to broadcast, but also the assigning of the frequencies”, otherwise, “an operator cannot make use of the rights given to it by community law for the access to the TV market”. With this verdict in their hands, the lawyers Grandinetti and Pace working for Europa7 ask the Council of State for the frequencies and recompense for the damage suffered.
The “emerging damage”, that is the money spent so far for the investments required by law for anyone who wins a concession (more than 120 million euro). And the “lucro cessante”, that is the loss of profits of the TV that was never born (more than 2 billion euro). Always assuming that the Council will give a verdict telling the State to finally assign the frequencies to them.
Otherwise Europa7 would die for ever and Di Stefano would have the right to the value of the whole company. The government of the Unione, by means of the State Advocacy Service, talks in playback: text and music from Mediaset. No reimbursement. No frequencies. Long live Gasparri. Rete4 sine die. Everything as before, as ever. Berlusconi would not have known how to do better.”

Posted by Antonio Di Pietro in Information