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Thursday, April 18, 2024

Lex pilot – legal opinions to the Law of Electronic Communications. Prof. Stanisław Piątek and prof. Piotr Bogdanowicz give opinions

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The solutions provided for in the so-called lex pilot act are aimed solely at promoting the programs of the public broadcaster, lawyers write in the opinions obtained by Gazeta Wyborcza and the gazeta.pl portal. They point out that the provisions are inconsistent with EU regulations and the case law of the Court of Justice of the European Union.

In December the Council of Ministers adopted the draft Act Provisions introducing the Act – Electronic Communications Law – the so-called lex pilot. If the regulations come into force, pay TV operators will have to make available, in the first places of the list, only five government TV channels.

Until now, the list also included commercial stations, including TVN. According to the applicable regulations, the operator must include the following channels in its offer: TVP1, TVP2, TVN, Polsat, TV4, TV Puls and the regional TVP antenna. If the amendment enters into force, all commercial channels will drop from the mandatory list. TVP1, TVP2, TVP3 will remain, and additionally TVP Info and TVP Kultura will appear. Five stations broadcast by TVP will also be on the first five buttons on the remote controls.

Read more: The government is preparing changes for TV viewers. Media: they favor TVP

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Lawyers criticize the regulations

In the opinion described by gazeta.pl, dr hab. Piotr Bogdanowicz from the Faculty of Law and Administration of the University of Warsaw points out that the act is inconsistent with European Union law and the case law of the Court of Justice of the European Union.

According to the professor, ‘must carry’ solutions do not pursue a public interest objective, are disproportionate and non-transparent. “It is true that in the explanatory memorandum to the bill, the legislator indicates various goals to be achieved by the act, but they are equal to or even broader than all the tasks of radio and television broadcasting under Article 1(1) and (1a) of the Broadcasting Act. jurisprudence CJEU it is clear that the mere formulation of a general policy objective is not sufficient to meet the requirements of EU law.

As described by gazeta.pl, according to the lawyer, the 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 regulation KRRiT) leads to a situation in which “decisions of the National Broadcasting Council may be taken in a discretionary manner. “This is contrary to the principle of proportionality” – he assessed.

According to prof. Bogdanowicz, the provisions specifying the order of programs in the EPG (Electronic Program Guide – a list of channels available in the operator’s offer) do not meet the conditions resulting from 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'” – it was written in the opinion .

“Regulation of the order of programs in the EPG will have negative effects on media pluralism, and did 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,” we read. in the professor’s opinion.

According to the lawyer, “the solution may therefore have a negative impact on consumer interests and fair competition, and therefore another reason of general interest, which the legislator should protect, and not violate.”

“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 the application of which will be discriminatory towards the programs of private broadcasters, including entities enjoying the freedom of establishment and performing economic activity in Poland through subsidiaries. Such action is directly contrary to EU law, under which Member States must 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. says the professor.

Lawyer: Laws favor certain media

Another opinion was prepared by prof. Stanisław Piątek from the University of Warsaw. As described by Gazeta Wyborcza, according to the lawyer, “the changes proposed by the government should not be adopted in the proposed form”.

The diary in bullet points described all the professor’s reservations. According to the lawyer, “all statutory solutions are aimed solely at promoting the programs of the public broadcaster, while media pluralism, covering the offers of public and commercial broadcasters, is a basic requirement for the appropriate exposure of programs in the light of EU law.”

According to the professor, “the constitutional principles of a democratic state governed by the rule of law resulting from the jurisprudence of the Constitutional Tribunal (prohibition of infringing pending interests, violation of the principle of protection of rights acquired rightly)” are also violated. The expert also points out that “the lack of mandatory public consultation of the project and the impact assessment is a violation of the principle of proper (decent) legislation” and “violation of the requirement of equal treatment of public broadcasters and commercial broadcasters regarding the sale of advertising time leads to discrimination of commercial broadcasters”. As described by “Gazeta Wyborcza”, prof. Piątek also points to “infringement of the provisions of the Constitution regarding the possibility of limiting constitutional freedoms and rights.”

Gazeta Wyborcza, gazeta.pl

Main photo source: Shutterstock



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