Public radio and television broadcasters – the applicability of provisions permitting: the liquidation of joint-stock companies; and the recall or suspension of a management board member by the general assembly of shareholders K 29/23
Ref. No. K 29/23
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 18 January 2024
The Constitutional Tribunal, composed of:
Julia Przyłębska – Presiding Judge
Krystyna Pawłowicz – 1st Judge Rapporteur
Stanisław Piotrowicz
Bogdan Święczkowski
Jarosław Wyrembak – 2nd Judge Rapporteur,
Recording Clerks – Grażyna Szałygo, Katarzyna Wajer,
having considered, at the hearings on 16 and 18 January 2024 – in the presence of the applicant and the Public Prosecutor-General – the application by a group of Sejm Deputies, lodged with the Constitutional Tribunal to consider the conformity of:
1) Article 26(4) of the Act of 29 December 1992 on Radio and Television Broadcasting (Journal of Laws – Dz. U. of 2022, item 1722) – insofar as it refers to the provisions of the Commercial Companies Code of 15 September 2000 (Journal of Laws – Dz. U. of 2022, item 1467, as amended) which permit the dissolution and liquidation of joint-stock companies that are public radio and television broadcasters – to Article 2, Article 6(1), Article 6(2) in conjunction with the Preamble, Article 7, Article 61(1), Article 213(1) in conjunction with Article 14 and Article 54(1), Article 218 of the Constitution;
2) Article 26(4) of the Act on Radio and Television Broadcasting – insofar as it does not rule out the applicability of Article 368(4), second sentence, of the Commercial Companies Code, thus allowing the general assembly of shareholders alone to recall management board members of companies that are radio and television broadcasters – to Article 2, Article 6(1), Article 6(2) in conjunction with the Preamble, Article 7, Article 61(1), Article 213(1) in conjunction with Article 14 and Article 54(1), Article 218 of the Constitution;
3) Article 459(1)-(3) and Article 461(1) of the Commercial Companies Code – insofar as it permits the dissolution and liquidation of joint-stock companies which are public radio and television broadcasters – to Article 2, Article 6(1), Article 6(2) in conjunction with the Preamble, Article 7, Article 61(1), Article 213(1) in conjunction with Article 14 and Article 54(1), Article 218 of the Constitution,
adjudicates as follows:
1. Article 26(4) of the Act of 29 December 1992 on Radio and Television Broadcasting (Journal of Laws – Dz. U. of 2022, item 1722) – insofar as it bypasses the express indication in Articles 459-478 of the Commercial Companies Code of 15 September 2000 (Journal of Laws – Dz. U. of 2024, item 18), as exceptions to the applicability of the provisions of the Commercial Companies Code to public radio and television broadcasters, and merely states that the Commercial Companies Code shall be applied thereto taking account of Articles 27-30 of the Act on Radio and Television Broadcasting, even though in the light of all the other provisions in the system of law, including Articles 27-30 of the Act on Radio and Television Broadcasting, public radio and television broadcasters may not be dissolved and liquidated – is inconsistent with Article 2 of the Constitution of the Republic of Poland.
2. Articles 459-478 of the Commercial Companies Code on the dissolution and liquidation of a joint-stock company – construed in the way that its regulatory scope, by virtue of the Commercial Companies Code alone, also comprises public radio and television broadcasters, within the meaning of the Act on Radio and Television Broadcasting – are inconsistent with Article 2 of the Constitution.
Moreover, the Tribunal decides:
1) discontinue the proceedings within the scope of point 2 of the application, as the norm reconstructed in the manner indicated therein does not exist in the Polish legal order, and thus it may not constitute the subject of the Constitutional Tribunal’s assessment – Article 26(4) of the Act of 29 December 1992 on Radio and Television Broadcasting (Journal of Laws – Dz. U. of 2022, item 1722), in conjunction with Article 27(3) of the said Act, unambiguously rules out the applicability of Article 368(4), second sentence, of the Commercial Companies Code of 15 September 2000 with regard to public radio and television broadcasters (Journal of Laws – Dz. U. of 2024, item 18), which entails that any decisions issued with regard to public radio and television broadcasters on the basis of Article 368(4), second sentence, of the Commercial Companies Code have no legal effects;
2) to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Julia Przyłębska
Krystyna Pawłowicz (dissenting opinion)
Stanisław Piotrowicz
Bogdan Święczkowski
Jarosław Wyrembak