Experts ruthless for “lex pilot”: Incompatible with EU law. Knocking out TVP channels will threaten media pluralism

(so-called lex pilot), ain the offer of paid operators the first five channels must include: TVP1, TVP2, TVP3, TVP Kultura and TVP Info. The remaining stations, after consultations, would be indicated by the chairman of the National Broadcasting Council. In addition, satellite platforms would have to provide not only TVP3 Warszawa (as is currently the case), but also all 16 regional channels.

According to the current rule “must carry, must offer”, the offer of pay TV operators must include: TVP1, TVP2, TVP3, Polsat, TVN, TV4 and TV Puls.

TVP wants to rummage with the pilots. “The draft law is incompatible with European Union law and the jurisprudence of the CJEU”

Prof. student dr hab. Piotr Bogdanowicz from the Faculty of Law and Administration of the University of Warsaw points out that the draft act is inconsistent with European Union law and the jurisprudence of the Court of Justice of the European Union. It introduces solutions that “as regards the ‘must carry’ obligation, do not pursue an objective in the public interest, are disproportionate and non-transparent” – we read in the legal opinion on the compliance of Art. 10 sec. 8 of the draft act Provisions implementing the act – Law of electronic communication with the law, in the scope of the “must carry” obligation and the sequence of programs in the EPG received by Gazeta.pl.

It is true that in the explanatory memorandum to the bill, the legislator indicates various objectives to be achieved by the act, but they are equal to or even broader than all the tasks of radio and television broadcasting under Art. 1 item 1 and 1a) of the Broadcasting Act. In addition, it is clear from the case law of the CJEU that the mere formulation of a general policy objective is not sufficient to meet the requirements of EU law

– emphasizes Prof. Bogdanowicz.

In addition, as we read, the introduction of a division into the “statutory list” (5 programs of the public broadcaster) and the “supplementary list” (other programs, which do not necessarily have to be programs of private broadcasters – determined by a regulation of the National Broadcasting Council) leads to a situation in which “decisions of the National Broadcasting Council may be made in a discretionary manner. This is against the principle of proportionality“.

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Prof. Piotr Bogdanowicz also points out that, in the opinion of the CJEU, the introduction of the “must carry” obligation may take place through implementing acts, provided that it does not allow for discretionary and arbitrary actions. “The provisions of the draft not only do not guarantee this, but also do not take into account the specific context in which the National Broadcasting Council has been operating for years, i.e. a regulatory body that does not exercise its powers impartially, whose members are appointed in a fully politicized procedure and whose personal politicization translates into bias in decision-making” – emphasizes Prof. Bogdanowicz in a legal opinion prepared for Gazeta.pl.

We also read that preparation of a supplementary list “is not subject to any transparent procedure” and contrary to the requirements resulting from EU law and the jurisprudence of the CJEU, “the whole procedure is not based on objective and non-discriminatory criteria known in advance by the broadcasters”.

“Lex Pilot”. “Regulating the order of programs in the EPG will have negative effects on media pluralism”

Prof. Bogdanowicz emphasizes that the provisions regulating the sequence of programs in the EPG (Electronic Program Guide – a list of channels available in the operator’s offer) provided for in the draft do not meet the requirements of EU law. “Taking into account the doubts expressed by the European Commission as to the independence of Polish public media, there are no grounds to claim that privileged access to the programs of a public broadcaster would be, as claimed by the legislator, ‘convenient for the recipient'” – we read in the opinion .

Regulating the sequence of programs in the EPG will have negative effects on media pluralism, and not contribute to its implementation, as required by EU law. It should be remembered that, according to the latest report of the European Commission, there is already a threat to media pluralism in Poland

– evaluates Prof. Bogdanowicz.

In addition, as emphasized in the opinion, the list of programs and the way they are arranged on it is a factor that differentiates the market offer and may determine the choice of consumers. “The proposed solution may therefore have a negative impact on consumer interests and fair competition, and thus another reason of general interest, which the legislator should protect and not violate” – we read.

Under the pretext of an allegedly ‘convenient for the recipient’ solution, providing preferential treatment to the programs of the public broadcaster, the legislator wants to implement a solution which will be applied discriminatoryly towards the programs of private broadcasters, including entities enjoying the freedom of establishment and conducting business activity in Poland through subsidiaries . This is directly contrary to EU law, which requires Member States to ensure that national authorities exercise their powers impartially and in accordance with the objectives of EU law, in particular media pluralism, consumer protection, accessibility, non-discrimination and the promotion of fair competition

– indicated.

Prof. Piotr Bogdanowicz also explained that, similarly to the determination of programs subject to the “must carry” obligation, the draft prevents broadcasters from knowing in advance the conditions under which they will carry out their broadcasting activities. In addition, the ordering of programs in the EPG (except for the first 5 programs of the public broadcaster) was entrusted to , “which is related to all the reservations mentioned above regarding discretionary decisions and political motivation of actions”.

“Lex Pilot”. “The changes are incompatible with the principle of transparency and clarity required by EU law”

We received another legal opinion on the assessment of compliance with the Constitution and European Union law of the draft regulations on “must carry, must offer” from prof. Stanisław Piątek from the University of Warsaw. In his opinion, the changes to the Broadcasting Act proposed by the government contained in Art. 10 points 8 and 9 of the draft “Lex pilot” act should not be adopted in the proposed form due to individual defects.

Prof. Piatek pointed to one of them. “The proposed changes in the field of ‘must carry, must offer’ are inconsistent with the principle of transparency and clarity required by EU law (i.e. the European Electronic Communications Code”).

In the opinion received by Gazeta.pl, it was emphasized that the draft limits the statutory list of programs covered by the ‘must carry, must offer’ obligation to programs of the public broadcaster and automatically extends this list to include further public programs that will be broadcast terrestrially by TVP. “The essential part of the list of programs covered by the obligation will be shaped by the National Broadcasting Council, on the basis of very imprecise guidelines for issuing the regulation,” we read.

Prof. Stanisław Piątek emphasizes that, contrary to the requirements of the European Code of Electronic Communications, the proposed scope of the “must carry, must offer” obligation cannot be considered as a proportionate and justified scope, as the scope of this obligation is increased five times compared to the current state. It was also indicated that the proposed changes were also negatively assessed in the light of the requirements of the Audiovisual Directive and the right to appropriate exposure of television programs in the light of Art. 7a of this directive.

All statutory solutions are aimed exclusively at promoting the programs of the public broadcaster. Meanwhile, media pluralism, covering the offers of public and commercial broadcasters, is a basic requirement for adequate exposure of programs in the light of EU law. The requirement of adequate prominence of television programs (assigned seat on the remote control) may be imposed if this is necessary to achieve general interest objectives in the field of audiovisual media services, such as media pluralism, freedom of expression and cultural diversity, which is not the case here

– we read in the legal opinion.

Prof. Piątek believes that “lex pilot” imposes an obligation to offer “a la carte” programs to viewers, which violates the protection of consumer rights in the field of contracts and bundled offers (requirement of the European Code of Electronic Communications). He points out that the constitutional principles of a democratic state ruled by law resulting from the jurisprudence of the Constitutional Tribunal are also violated:

• the need to make changes to contracts with operators and program recipients means that the ban on infringing interests in the course is not taken into account, especially in the scope of those contracts which, in accordance with the applicable requirements, are contracts concluded for a definite period of time;
• the method of treating existing “must carry, must offer” entitlements applied in the draft may infringe the principle of protection of rightfully acquired rights;
• the obligation to publicly consult the draft and to assess the impact of the regulation was completely omitted, even though the provisions on “must carry, must offer” and restrictions on the conclusion of contracts apply to millions of households, all broadcasters and operators of cable, satellite and IPTV. This means that the principle of correct (decent) legislation resulting from the principle of a democratic state ruled by law has been violated;
• the legislator should maintain the existing method of regulating the “must carry, must offer” obligation “only in the act”, and not in the executive act, as the regulation of the “must carry, must offer” obligation is not limited to causing only economic effects, but is directly related to civil rights in terms of freedom of expression, right to information and freedom of communication;
• multiple extension of the scope of the “must carry, must offer” obligation means a very serious limitation of broadcasters’ property rights, subject to protection in accordance with Art. 64 of the Constitution of the Republic of Poland. The obligation to make so many programs available free of charge violates the constitutional principle of protection of property and other property rights;
• the solutions proposed in the draft violate the requirement of equal treatment of public broadcasters and broadcasters of commercial programs regarding the sale of advertising time and lead to discrimination of commercial broadcasters. Discrimination consists in a disproportionate extension of the obligation to transmit public broadcaster programs and to prominence these programs in the first places on the television remote control.

Prof. Piątek also explains that the solutions proposed by the government violate the provisions of the Constitution regarding the possibility of limiting constitutional freedoms and rights in various ways. As we read, it is about:

• failure to comply with the proportionality requirement – violation by extending the scope of the transmission obligation five times;
• gross lack of proportionality – restrictions imposed on broadcasters and operators. They force a complete change in the rules of concluding agreements for the provision of programs between broadcasters and operators, and between these operators and recipients of programmes. This means limiting the freedom of economic activity and the freedom of contracts.