The forceful takeover of public media and the State Press Agency in Poland was aided by the argument that powers of the National Media Council (Rada Mediów Narodowych) are inconsistent with the Constitution. This is not true.
The actual state of affairs
On 19 December 2023, the Sejm (Polish parliament), dominated by the newly formed parliamentary majority Citizen Coalition (Koalicja Obywatelska) – Third Way (Trzecia Droga) – The Left (Lewica) adopted a resolution “on restoring legal order and the impartiality and reliability of public media and the Polish Press Agency (Polska Agencja Prasowa)”. And called the State Treasury to take corrective action.
On the same day, the Minister of Culture and National Heritage (Minister CNH), as the body exercising the ownership rights of the State Treasury, based on the Act of the 15 September 2000 - the Commercial Companies Code[1], dismissed the previous management boards of Polish Public Television (Telewizja Polska SA, TVP), Polish Radio (Polskie Radio SA, Polish Radio) and Polish Press Agency (Polska Agencja Prasowa SA, PAP) and their supervisory boards. In the same procedure, he appointed new supervisory boards of these companies, which appointed new management boards.[2]
The new authorities took over management of the above-mentioned companies within a few weeks, often using force to overcome protests by some employees, including an occupational strike at one of the TVP buildings.
On 23 December 2023, President Andrzej Duda announced that he had vetoed the budget bill prepared by the new government, which provided inter alia funds for public media for the next year. The decision was related to “a gross violation of the Constitution and the principles of a democratic rule of law” in public media.[3]
Following the presidential veto, the Minister CNH decided to place TVP and Polish Radio (including regional companies) and PAP in liquidation.[4]
On 8 April 2024, the registry court in Warsaw allowed TVP to be put into liquidation.[5] Earlier, the registry courts entered the opening of liquidation for all 17 regional television stations, public radio and PAP.
In this way, the process of taking over public media by the new government was closed. This was done in an apparent contradiction to the provisions of the Act of the 22 July 2016 on the National Media Council (Rada Mediów Narodowych)[6]. According to its art. 2 sec. 1, “the Council is the body competent in matters of appointing and dismissing the personal composition of the bodies of public radio and television broadcasting units and the Polish Press Agency (...)”. This provision is reflected in art. 27 sec. 3 and art. 28 sec. 1e of the Act of 29 December 1992 on radio and television broadcasting[7] (Broadcasting Act) and in the Act of 31 July 1997 on the Polish Press Agency.[8]
This action was also contrary to the wording of the Commercial Companies Code Act established after the CT judgment of the 18 January 2024[9].
The National Media Council is a body established by the Act of 22 June 2016. Before the National Media Council, in the period from December 2015 to June 2016, the body authorized to create public media authorities was the minister responsible for the State Treasury. Even earlier, from December 1992 to December 2015, the creation body was the National Broadcasting Council (Krajowa Rada Radiofionii i Telewizji, KRTiT), a constitutional state body that “guards freedom of speech, the right to information and the public interest in radio and television”[10].
In this way, the public media have come under the control of the ruling coalition and are implementing government propaganda, in particular hiding from the public opinion governmental activities violating the rule of law. The political goal of taking over the public media and PAP by the government of the “December 13th coalition” is confirmed by two pieces of information:
· the first, given in December 2023 by the Minister CNH, indicating that the decision on the state of liquidation may be withdrawn at any time, which suggests that the ownership actions were simply used to circumvent the applicable law;
· the second, that the ultimate goal of the action is to allegedly restore the situation consistent with the Constitution, resulting from the judgment of the CT of the 13 December 2016 (K 13/16) and there are plans to adopt a new act on radio and television broadcasting in the future.
The simplistic nature of the arguments justifying the takeover of public media and PAP in violation of the law is so obvious that it is not even worth engaging in discussions with it. However, it is advisable to explain the true content of the CT’s judgment (K 13/16), on which the entire government narrative is built. This will show its falseness and weakness.
Legal status
In March 2016 and April 2016 when the body authorized to create the public media authorities was the minister responsible for the State Treasury[11], the provisions concerning the appointment and dismissal of these authorities[12] were appealed to the CT by the Commissioner for Human Rights and a group of MPs. On 13 December 2016, the CT issued a judgment K 13/16, where – in the context of interest to us (p. 3 and p. 5b of the judgment) – it assessed as unconstitutional art. 1 p. 2 letter b and art. 1 p. 3 letter a of the Act of the 30 December 2015 amending the Broadcasting Act, authorizing the minister of the State Treasury to appoint and dismiss the public media authorities[13].
At this point, I would like to remind you that the CT ruled on a legal status in which the body authorized to create the public media authorities was a minister (a member of the government). However, in the period between the submission of the application to the CT and the issuance of the CT’s judgment, the legal situation changed. And at the time of the issuance and announcement of the judgment - from July 2016[14] - the institution competent to create the public media authorities was already a body newly established by statute - the National Media Council.
What is also surprising is that the CT did not reconstruct the subject of the appeal during the proceedings on the applications. And it could have done so. It judged in December 2016, i.e. when the National Media Council had already been operating for half a year. However, instead of carrying out the reconstruction and ruling on the norm in its new wording (with the National Media Council), it consciously, and therefore intentionally, ruled on the no longer binding provision in the wording referring to the minister responsible for the State Treasury.
I am writing that the CT did this on purpose because:
· firstly, the judge-rapporteur in the adjudicating panel was Prof. Marek Zubik, and I appreciate the high competence of this rapporteur. It is difficult to accuse him of such a simple error, the avoidance of which would have created a completely different legal situation;
· secondly, the judgment was passed unanimously, which means that the rapporteur received the consent of the entire panel;
· thirdly, the subject of the review was the Act of 30 December 2015 amending the Broadcasting Act, i.e. the amending act. The purpose of the amending act is to amend the substantive act. This means that the substantive norms, as given by the amendment, are contained in the amended (main) act. So, the CT should basically adjudicate on the provision of the main act in its new substantive wording;
· fourthly, my assessment is confirmed by the unambiguous wording of the judgment’s operative part. In p. 3 of the operative part, art. 27 sec. 3 of the main act is cited as an element of the amending provision (art. 1 p. 2 letter b), which is additionally confirmed by the specific place of publication of the legal act in which this provision is found, indicated therein. This refers to the Journal of Laws (Dziennik Ustaw) 2015, item 1531 and 1830. These items contain a legislation, which is an act changing the body authorized to appoint the public media authorities from the KRRiT to the minister responsible for the State Treasury. There is not even a mention of the National Media Council there.
The conclusion is that the CT did not judge on the National Media Council in judgment K 13/16. The Tribunal assessed a legal situation that no existed at the moment of judging. The government’s claims that the actions against the media are aimed at restoring compliance with the Constitution after the CT’s ruling are therefore false. However, the effect of such action by the CT is also crucial for assessing the current legal situation.
Keeping watch
It is the CT competence to assess the hierarchical conformity of legal acts, legal provisions and legal norms. CT's judgements are final and shall be universally applicable. However, this legal binding applies only to the verdict (sentence), and the condition for obtaining this force is its publication in the official journal[15].
The judgment of the CT in case K 13/16 was published on 29 December 2016[16]. However, since this was a provision that referred to the Minister responsible for the Treasury as the body creating the public media bodies, only the presumption of constitutionality of this provision - although no longer in force - was rebutted. Certainly, the new provision replacing the Minister with the National Media Council was not declared unconstitutional. In fact, the CT did not rule on the provision in its new wording.
The question arises, why did the CT judge in this way? The CT judgment in case K 13/16 did not formally disqualify the National Media Council as a body that does not meet the constitutional standard. It even referred to it in the (non-binding) justification, where it only emphasized that “the creation of a new public authority and the transfer of certain competences to it in the sphere of radio and television broadcasting does not eliminate the obligation of the legislator to introduce instruments enabling the National Broadcasting Council to perform its constitutionally defined functions.”[17] Thus, the KRRiT served the CT to indicate an objective standard within which it saw the position of the body creating the public media authorities.
In this way, the CT confirmed that the objective constitutional standard does not require the KRRiT to create the public media authorities. Yes, it can, and even should have some involvement in this process, but the key here is to ensure proper legal solutions for the creating of public media authorities. The procedure adopted in legal acts should be transparent, and the body selecting them should consist of people with appropriate qualifications and being free from political influence.
The KRRiT obviously meets these criteria. Although I personally have doubts whether its constitutional task of “guarding freedom of speech, the right to information and the public interest in radio and television”[18] includes the right to appoint the public media authorities. It is quite a long way from being a guardian to having creative powers.
Being a guardian is a supervisory and regulatory function. It does not necessarily make sense to combine it with the power to create authorities. However, since the CT allows it, I will not discuss it.
But the KRRiT is certainly not the only body that could perform the function to create public media authorities. Such a body does not have to be empowered in the Constitution at all. After all, it is not forbidden to create an institution by statute that supplements the tasks of constitutional bodies. Let me just remind you that this is already happening in the Polish legal system (the Patient Rights Ombudsman, the Financial Ombudsman). Are all these bodies therefore unconstitutional?
Hutzpah and propaganda
The National Media Council also meets the objective standard of an independent body that can perform the function of creating public media authorities. It is enough to look at the provisions of the law. It is established by a statute (the Act on the National Media Council), which guarantees the right to create it to various political forces and bodies (the President and the Sejm, the ruling coalition and the opposition). It has terms of office, which cuts off its members from political creators, giving independence thanks to minimal possibilities of dismissal. There are indicated competence criteria for candidates. Finally, the act prohibits combining membership in the Council with certain political functions and holding shares in media companies. Of course these provisions could be detailed. I would extend the catalogue of prohibitions on combining membership with several other political functions, including the function of a member of parliament. But the National Media Council certainly cannot be accused of not meeting the minimum requirements of this standard.
The concept of the unconstitutionality of the provisions concerning the National Media Council as a result of the judgment of the CT (K 13/16) is also incorrect. Interestingly, it is promoted not only by the government, but also by the Commissioner for Human Rights[19]. Recognition of a provision as unconstitutional may be based solely on the judgment of the CT. Of course, the standard created as a result of the judgment K 13/16 may cause other applicable acts, regulations or norms to be inconsistent with it in a substantive sense, which leads to a situation referred to as the concept of “secondary unconstitutionality”. However, this is not tantamount to formal inconsistency with the Constitution. This can only happen when the CT judges these provisions. Until such a judgment of the CT, such provisions should be applied, even if they are “secondarily unconstitutional”. Moreover, as I have shown above, the thesis of secondary unconstitutionality cannot be applied to the case of the National Media Council.
In the above argument we also find the answer to the question of why the common courts have been registering successive changes in the bodies of public media created by the National Media Council for the last years. They knew the judgment of the CT (K 13/16). They rightly understood that the National Media Council meets the required abstract standard, and the provision authorizing it to create public media authorities has never been repealed. It is still in force and benefits from the presumption of constitutionality.
Conclusion is simple. The actions taken by the ruling politicians towards public media undoubtedly violated the legal positions of the National Media Council and the public media authorities. The judgment of the CT (K 13/16) is no justification for these actions. All this shows that the standard of the “rule of law” was severely violated by the government’s actions towards public media.
So why did the registry courts agree to enter the new company authorities into the court registers? The reason is simple. The apolitical nature of judges in Poland since 2017 is just a slogan. Some judges are openly involved in the political fight with the right-wing environment. There is also a group that has been intimidated and is doing so under pressure. Therefore, the entries in the registers of changes in the authorities of media companies and PAP were successful, although they partially occurred only at the appeal stage. In this way, however, they perpetuated the government's violation of the law.
[1] Journal of Laws of 2024, item 8 as amended.
[2] The Minister acted in contravention of the protective order of the Constitutional Tribunal (CT) of 15 December 2023, in which the CT prohibited him from taking measures under the Commercial Companies Code.
[3] Prezydent.pl: https://www.prezydent.pl/prawo/zawetowane/weto-do-ustawy-okolobudzetowej-,79244 (24.07.2024).
[4] PAP: https://www.pap.pl/aktualnosci/minister-kultury-podjalem-decyzje-o-postawieniu-w-stan-likwidacji-spolek-tvp-polskie (24.07.2024).
[5] It happened at the stage of the determination of the complaint against the ruling of the court registrar, who refused to disclose the opening of the liquidation in the National Court Register, citing the judgment of the CT of 18 January 2024 (K 29/23): https://businessinsider.com.pl/wiadomosci/likwidacja-tvp-wpisana-do-rejestru-sady-nie-daly-sie-oszukac/093g05l (31.07.2024).
[6] Journal of Laws item 929.
[7] Journal of Laws of 1997 no. 7, item 34.
[8] Journal of Laws of 1997 no. 107, item 687.
[9] In the Commercial Companies Code, we find art. 26 sec. 4, where we read that “The provisions of the Commercial Companies Code shall apply to the companies specified in sec. 2 and 3, subject to art. 27-30 of the Act, with the exception of art. 312 and 402”. On 18 January 2024, the CT issued a judgment (K 29/23), which, ruling on this provision, found that the application of the Commercial Companies Code regarding the liquidation of companies cannot take place in relation to public media companies. It was a continuation of the earlier views of the CT, which dealt with the issue of ownership power over the authorities of media companies immediately after the entry into force of the Broadcasting Act. In the justification of the resolution of 3 December 1995 (W 6/95, OTK no. 3/1995, item 23), the CT confirmed that the specific nature of public media prevails over the form of ownership (state treasury companies), and “the axiological context resulting from the direct connection between public radio and television broadcasting and the implementation of freedom of speech and the right to information does not allow for treating public radio and television companies in exactly the same way as other commercial law companies”. As a result, the application of commercial law provisions to companies under the Broadcasting Act is problematic in principle.
[10] Art. 213 sec. 1 of the Polish Constitution.
[11] The National Media Council was established only under the Act on the National Media Council of 22 June 2016.
[12] Journal of Laws if 2016 item 25.
[13] OTK 2016/A/101.
[14] The Act on the National Media Council was adopted on 22 June 2016. It was published on 7 July 2016.
[15] Art. 190 of the Polish Constitution.
[16] Journal of Laws item 2210.
[17] The Tribunal mentioned this in the context of the KRRiT’s powers to create the company’s statute and not to appoint authorities. See point 7.8 in fine of the justification for judgment K 13/16.
[18] Art. 213 sec. 1 of the Polish Constitution.
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