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
On 16 and 18 January 2024, the Constitutional Tribunal considered the application lodged by a group of Sejm Deputies which pertained to the applicability, to public radio and television broadcasters, the provisions permitting the liquidation of joint-stock companies and the provisions permitting the recall, or suspension in his/her duties, of a management board member by the general assembly of shareholders.
The Constitutional Tribunal adjudicated that:
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 decided:
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.
There was one dissenting opinion, filed by Judge Krystyna Pawłowicz.
An analysis of the application lodged by a group of Sejm Deputies for the Constitutional Tribunal’s consideration led to the Tribunal’s identification of three constitutional-law issues, namely:
– of Article 26(4) of the Act on Radio and Television Broadcasting, which does not expressly rule out the possibility of dissolving and liquidating public radio and television broadcasters, by means of the procedure provided for joint-stock companies in the Commercial Companies Code (hereinafter: the CCC);
– the second issue primarily amounted to the question as to whether it is possible to reconstruct the legal norm permitting the recall of a management board member of a joint-stock company that is a public radio and television broadcaster by a body other than the National Media Council, by means of the procedure specified in Article 368(4), second sentence, of the CCC, which authorises the General Assembly of shareholders in that respect;
– the third issue concerned the constitutional-law assessment of the interpretation of the provisions of the CCC on the dissolution and liquidation of joint-stock companies which entails that the regulatory scope of the said provisions – by virtue of the CCC alone – also comprise joint stock companies there are public radio and television broadcasters.
A.
Addressing the first of the issues, namely: conducting the constitutional-law assessment of Article 26(4) of the Act on Radio and Television Broadcasting, which does not expressly rule out the possibility of dissolving and liquidating radio and television broadcasters, in the procedure provided for joint-stock companies in the CCC, the Constitutional Tribunal primarily took account of the following circumstances:
– (1) – the Act on Radio and Television Broadcasting expressly obliges the competent minister for the State Treasury to set up companies that are public radio and television broadcasters;
– (2) – the Act on Radio and Television Broadcasting clearly requires the continuous existence of public radio and television broadcasting provided by companies set up in accordance with the Act as public radio and television broadcasters;
– (3) – the Act on Radio and Television Broadcasting expressly requires the continuous fulfilment of all the functions and responsibilities indicated therein on the part of public radio and television broadcasters, which includes the functions and responsibilities of constitutional significance;
– (4) – no provision of the Act on Radio and Television Broadcasting explicitly permits dissolving and liquidating joint-stock companies that are public radio and television broadcasters, which constitutes a very large consequence of the principle of the continuity of their existence and operation;
– (5) – companies that are public radio and television broadcasters constitute highly unique public-law entities, set up as a result of a fulfilled obligation arising from the statute being lex specialis in relation to the CCC.
The Constitutional Tribunal shared the stance taken in the course of the proceeding, and presented until the day of the delivery of the judgment, by the he Public Prosecutor-General. The Tribunal found that Public Prosecutor-General, Adam Bodnar, justifiably argued that:
– “(…) the legislator provided (…) special provisions on setting up and registering of the company, thus admitting that the content of the CCC was inadequate and insufficient (…);
– “(…) the provisions of the CCC, as a general statute for that area of law, contain lex generalis norms which are no doubt proper for the classic constructs of commercial law, where e.g. a joint-stock company is established by being set up by its founders. In the classic take, it is indeed the will of the shareholders that determines the question of ‘to be or not to be’ for a relevant joint-stock company. By contrast, with regard to entities that are public radio and television broadcasters, it is a relevant statutory norm that determines that public radio and television broadcasting is ‘provided by’ companies. The transitional provisions merely comprise a procedure for setting up companies and for companies’ acquisition of property. In other words, the dissolution of those companies would result in the situation where public radio and television broadcasting is not ‘provided by’ any company, which would contradict the literal wording of the statute. To put it differently, it should be concluded that the liquidation of public radio and television broadcasters requires amending the statute”.
In the light of the above, in the Tribunal’s judgment delivered in the present case, the content of Article 26(4) of the Act on Radio and Television Broadcasting – the literal wording of which does not rule out the possibility of applying the provisions of the CCC on the solution and liquidation of a joint-stock company with regard to joint-stock companies that are public radio and television broadcasters – leads to systemic incoherence, the lack of logic, and the lack of regulatory consistence. The Constitutional Tribunal deemed that Article 26(4) of the Act on Radio and Television Broadcasting, within the scope indicated in the judgment, infringes the principle of appropriate legislation, and consequently: the principle of a democratic state ruled by law, expressed in Article 2 of the Constitution.
B.
When determining the issue rendered in the question about the possibility of reconstructing the legal norm authorising an entity other than the National Media Council, by means of the procedure specified in Article 368(4), second sentence, of the CCC, which authorises the general assembly of shareholders in that respect – the Constitutional Tribunal also shared the stance In the course of the proceedings by the Public Prosecutor-General. The Tribunal found that Public Prosecutor-General, Adam Bodnar, justifiably argued that:
– “(…) the provision of Article 26(4) of the Act on Radio and Television Broadcasting, with reference to the provisions of the CCC, explicitly takes account of Article 27 of the Act, which mentions not only bodies authorised to recall a management board member but also the perquisites of the recall. This entails that, primarily, what applies here is the conflict-of-law rule of lex specialis derogat legi generali, which excludes the possibility of management board members being recalled by a different body or in other circumstances”;
– “Thus as long as the provision of Article 27 of the Act on Radio and Television Broadcasting is in force and enjoys the presumption of constitutionality, it is not possible to arrive at an interpretation of the provision which would completely bypass the application thereof (the prohibition of the ‘per non est’ interpretation)”.
In conclusion: the Constitutional Tribunal held that, in the Polish legal order, There is no legal norm permitting the recall of management board members of joint-stock companies that are public radio and television broadcasters by the general assembly of shareholders – the power to recall a management board member of such a company is vested only with the National Media Council.
C.
By carrying out the constitutional-law assessment of such an interpretation of the CCC on the dissolution and liquidation of joint-stock companies, which also implies that the regulatory scope of those provisions – by virtue of the CCC alone – also comprise joint-stock companies there are public radio and television broadcasters, the Constitutional Tribunal held that the manner of interpreting them indicated by the applicant in French the principle of a democratic state ruled by law, enshrined in Article 2 of the Constitution.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: President of the Constitutional Tribunal, Judge Julia Przyłębska – Presiding Judge; Judge Krystyna Pawłowicz – 1st Judge Rapporteur; Judge Jarosław Wyrembak – 2nd Judge Rapporteur; Judge Stanisław Piotrowicz; and Judge Bogdan Święczkowski.