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The Act amending the Broadcasting Act K 13/16

‘Certain provisions of the Act of 30 December 2015 amending the Broadcasting Act – insofar as they concern depriving the National Broadcasting Council of its powers that are necessary to “safeguard the freedom of speech, the right to information as well as safeguard the public interest regarding radio broadcasting and television” – are inconsistent with the Constitution,’ stated the Constitutional Tribunal.

On 13 December 2016 at 9.30, the Constitutional Tribunal considered joined applications filed by the Ombudsman and a group of Sejm Deputies with regard to the Act of 30 December 2015 amending the Act of 29 December 1992 on Radio and Television Broadcasting (hereinafter, respectively: the Amending Act of 30 December 2015; the Broadcasting Act of 29 December 1992).

The Constitutional Tribunal adjudicated that:

1) Article 1(1) of the Amending Act of 30 December 2015 is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

2) Article 1(2)(a) of the Amending Act of 30 December 2015 is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

3) Article 1(2)(b) of the Amending Act of 30 December 2015 – insofar as, in Article 27(3) of the Broadcasting Act of 29 December 1992, it excludes the involvement of the National Broadcasting Council in the procedure for appointing and dismissing management board members of state-owned broadcasting companies – is inconsistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

4) Article 1(2)(c) of the Amending Act of 30 December 2015:

a) insofar as it repeals Article 27(5) of the Broadcasting Act of 29 December 1992, is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

b) insofar as it repeals Article 27(6) of the Broadcasting Act of 29 December 1992, is inconsistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

5) Article 1(3)(a) of the Amending Act of 30 December 2015:

a) insofar as, in Article 28(1) of the Broadcasting Act of 29 December 1992, it repeals the recruitment procedure for appointing management board members in state-owned broadcasting companies and criteria that need to be met by candidates for members of such boards, as well as it decreases the number of members of a given management board to three persons, is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

b) insofar as, in Article 28(1) of the Broadcasting Act of 29 December 1992, it excludes the involvement of the National Broadcasting Council in the procedure for appointing and dismissing management board members of state-owned broadcasting companies, is inconsistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

6) Article 1(3)(b) of the Amending Act of 30 December 2015:

a) insofar as it repeals Article 28(1b) and (1c) of the Broadcasting Act of 29 December 1992, is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

b) insofar as it repeals Article 28(1d) of the Broadcasting Act of 29 December 1992, is inconsistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

7) Article 1(3)(d) of the Amending Act of 30 December 2015 is consistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution;

8) Article 1(4) of the Amending Act of 30 December 2015, which repeals Article 29(3) of the Broadcasting Act of 29 December 1992, is inconsistent with Article 213(1) in conjunction with Article 14 and Article 54(1) of the Constitution.

Moreover, the Constitutional Tribunal decided to discontinue the review proceedings as to the remainder.

The ruling was unanimous.

 

1 The subject of the Tribunal’s review was the Amending Act of 30 December 2015. Allegations formulated by the applicants concerned:

- firstly, the process of enacting the said Act;

- secondly, the possibility of introducing a new mode of determining the composition of the boards of state-owned broadcasting companies, as well as modifications to the functioning of those boards;

- thirdly, the unconstitutionality of solutions providing for the termination of the mandates of current members of the management and supervisory boards of state-owned broadcasting companies as well as the unconstitutionality of the requirement to adjust the rules and regulations of those companies to the new provisions.

The applicants pointed out that the quick pace of the legislative proceedings and of the enactment process infringed the principle of a democratic state ruled by law (Art. 2 of the Constitution). They also argued that changes arising from that Act were aimed at gaining direct influence over the composition of the boards of the state-owned mass media by the current parliamentary majority and the Council of Ministers. The solutions excluding the involvement of the National Broadcasting Council in the procedure for appointing board members of particular state-owned broadcasting companies are aimed at preventing the Council from exercising its powers specified by the Constitution (Art. 213(1) of the Constitution). This was, in turn, linked with the infringement of the freedom of the press and other means of social communication (Art. 14 of the Constitution) as well as the violation of the constitutional guarantees of the freedom of speech and the right to information (Art. 54, Art. 61 and Art. 74(3) of the Constitution).

2. The Tribunal has examined the constitutionality of the legislative process several times recently. In this context, the constitutional court recognises that preserving a democratic character of the process is becoming a systemic problem. This also refers to the Amending Act under discussion in the present case. Serious procedural deficiencies of the enactment process of that Act were indicated by the applicants, as well as the Tribunal is ex officio familiar with them.

Taking those circumstances into account, the Constitutional Tribunal stated however that the arguments presented in the application of the group of Sejm Deputies did not fully portray the scale of all constitutional problems which had occurred with regard to the enactment of the Amending Act. In order to assess the constitutionality of that process, the Tribunal itself would have to formulate allegations, and it is not competent to do so. In the view of the Tribunal, the justification for the allegation about the non-conformity of the process of enacting the Amending Act is insufficient. For this reason, the Tribunal discontinued the review proceedings with regard to that allegation. The said solution does not rule out the possibility of reviewing the process of enacting the Amending Act in separate proceedings on the basis of another application.

3. Due to the entry into force of the Act of 22 June 2016 on the Council of National Mass Media, the legal provisions challenged by the applicants changed before the issuance of the

The mechanism of determining the composition of the management and supervisory boards of state-owned broadcasting companies by the competent minister for the State Treasury was fully replaced with the procedure involving the participation of a newly-appointed state organ – the Council of National Mass Media. For that reasons, the Tribunal discontinued the review proceedings with regard to the challenged provisions of the Amending Act, which were changed by the Act on the Council of National Mass Media.

4. The review of the provisions of the Amending Act mostly entailed the assessment of provisions repealing particular provisions of the Broadcasting Act of 29 December 1992. The Tribunal consistently confirmed the possibility of conducting such a review. It was related to the assessment whether it was admissible to repeal provisions within the scope which previously was and – in the light of the Constitution – should be regulated by the legislator.

The constitutional review of the Amending Act also, partially, comprised the assessment of the provisions amending the wording of certain provisions of the Broadcasting Act of 29 December 1992. Within this scope, the Tribunal also made reference to norms which deprived the constitutional organ of the state, i.e. the National Broadcasting Council, of powers that enabled it to perform its constitutional tasks.  

5. The Constitutional Tribunal evaluated the applicants’ allegations primarily from the point of view of the constitutional position and tasks of the National Broadcasting Council. Within such a scope, the Tribunal examined whether changes introduced by the Amending Act fell within the ambit of the legislator’s discretion as regards specifying the functioning and organisation of the state-owned mass media. The key objective of such a review was to determine whether, after the above-mentioned amendments, the National Broadcasting Council may continue to safeguard the freedom of speech, the right to information as well as safeguard the public interest regarding radio and television broadcasting.

The Constitution does not comprehensively regulate the mode of functioning of radio and television broadcasting. However, it does enumerate tasks that need to be performed within that realm and assigns the performance of those tasks to a separate body, namely the National Broadcasting Council. The legislator has excessive freedom in shaping the organisational aspects of radio and television broadcasting.

Yet, that realm may not be regulated in such a way that, as a result, the National Broadcasting Council will be deprived of its powers to perform its constitutional tasks. The vesting of certain powers – including powers to appoint and dismiss members of the management and supervisory boards – with entities established by the legislator within the scope of the state-owned mass media is not ruled out constitutionally. However, this must allow the National Broadcasting Council to have the last word within the statutory scope of the functioning of radio and television broadcasting. There may not be a situation where an organ of the state that is established by statute deprives a constitutional organ of the state of its capacity to exercise its powers and perform its tasks.

6. The Tribunal deemed that some of the changes introduced by the Amending Act did not hinder the capacity of the National Broadcasting Council to effectively perform its constitutional tasks. This led to the conclusion that the legislator could adopt such solutions within the scope of his discretion.

What was ruled to be consistent with the Constitution comprised, first of all, the legislator’s modifications to the terms of appointing members to the management and supervisory boards of state-owned mass media and a departure from a recruitment procedure for filling in vacancies. This change does not automatically deprive the National Broadcasting Council of its capacity to perform its constitutional tasks. Secondly, the solution that also conformed to the Constitution was the elimination of the terms of office for the management and supervisory boards of state-owned broadcasting companies. No reservations were raised also with regard to a decrease in the number of members making up those boards. Thirdly, the legislator could modify evaluation criteria for candidates for board members in state-owned broadcasting companies. The way of regulating those matters by the legislator did not undermine the constitutional position of the National Broadcasting Council, as an entity responsible for safeguarding the freedom of speech, the right to information as well as safeguarding the public interest regarding radio and television broadcasting.

7. What was deemed to be unconstitutional is a set of solutions included in the Amending Act which completely excluded the involvement of the National Broadcasting Council in the procedure for appointing members to the management and supervisory boards of state-owned broadcasting companies. The Tribunal stressed that the choice of the organisational structure in which the state-owned mass media were to function should be made by the legislator.

However, if the legislator decided to adopt a model in which all state-owned broadcasting companies have the structure of a single-shareholder company of the State Treasury (Art. 26(1) of the Broadcasting Act), then he should provide for appropriate powers for the National Broadcasting Council that would make it possible to supervise the functioning of such entities within the ambit of the said Council’s tasks assigned to the National Broadcasting Council in Article 213(1) of the Constitution.

The Tribunal did not determine the manner in which the legislator should ensure that the National Broadcasting Council would participate in the procedure for appointing and dismissing members of the management and supervisory boards of state-owned broadcasting companies. The constitutional court only stated that the changes introduced in the Amending Act had resulted in depriving the said Council of any influence over the composition of such boards. The legislator placed the National Broadcasting Council outside the realm of determining who and how long would be a member of the management board of a state-owned broadcasting company. This makes it impossible for the said Council to carry out its constitutional tasks effectively. The Council must be involved in a procedure for determining the composition of the management and supervisory boards of state-owned broadcasting companies.

8. The Tribunal deemed that it was unconstitutional to deprive the National Broadcasting Council of its powers to grant consent to modifications in rules and regulations of state-owned broadcasting companies. Indeed, such a solution leaves the organisational realm of those companies outside the control of a constitutional organ of the state which is to safeguard the freedom of speech, the right to information as well as safeguard the public interest regarding radio and television broadcasting. It is not enough to have a statutory regulation that such tasks may be performed by an organ of the state which has not been provided for in the Constitution.

9. The challenged transitional provisions included in the Amending Act concerned events that had occurred and ended in 2016 prior to the enactment of the judgment in the present case. However, the applicants did not sufficiently prove that the Tribunal’s adjudication on those provisions was necessary for the protection of the constitutional freedoms and rights of the individual.

Furthermore, the Tribunal stated that it was inadmissible to review the provision specifying terms of the entry into force of the Amending Act. At the moment of adjudicating by the Tribunal, the said provision had different wording than the one challenged in the application. The consideration of that allegation would necessitate raising allegations indicating the non-conformity of that provision to the Constitution other than those presented by the applicants.

 

The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Marek Zubik.