The case of TVP S.A. - on the interface between company’s interest and the public interest

The purpose of the study is to present my position on personnel changes in companies controlled by the State Treasury that conduct broadcasting activities.

The study refers primarily to legal issues and abstracts from political assessments.

The canvas for this publication is the dispute surrounding the appointment and dismissal of competing decision-makers at TVP S.A.

The starting point for further consideration is the special status of companies operating in the field of public media.

TVP S.A. is a company established for the purpose of public television broadcasting (see Article 26(2) of the Broadcasting Act of 29 December 1992). According to the statutory model, public television carries out its public mission by offering, on the principles set out in the Act, to the whole society and to individual parts of it, diversified programmes and other services in the field of information, journalism, culture, entertainment, education and sport, characterised by pluralism, impartiality, balance and independence, as well as innovation, high quality and integrity of broadcasting (Article 21(1) of the Broadcasting Act).

As a consequence of the above, the normative objective of TVP S.A.’s activity is thoroughly marked by the public interest.

The publicization of public media regulation is primarily influenced by norms of constitutional value, including those contained in Article 213(1) of the Constitution of 2 April 1997, according to which the National Broadcasting Council (“KRRiT”) upholds freedom of expression, the right to information and the public interest in broadcasting.

Given the positioning of the Constitution in the system, a number of private law norms, including those contained in the Commercial Companies Code of 15 September 2000 (“CCC”), should be applied and interpreted according to the canons of pro-constitutional interpretation.

The obligation to refer to the systemic interpretation concerns, inter alia, the regulations contained in Article 3 of the CCC (concerning the purpose of a commercial company), the code rules for the appointment of members of joint-stock company bodies and the understanding of the notion of the company’s interest.

For systemic reasons, the interest of the company in the case of TVP S.A. cannot be equated with the interest of the sole shareholder, i.e. the State Treasury.

Placing a sign of equality is controversial especially in those cases where the representative of the State Treasury exercises ownership rights in an arbitrary and self-serving manner.

The justification for the disinclination of policy-makers (from any fraction) cannot be based on grounds such as: “context”, “circumstances”, or “standards of law in transition”.

I am particularly dubious about this “transitional period” which, if sanctioned (e.g. by a registry court), could result in a permanent abandonment of constitutional restrictions in favour of the discretion of any political environment.

The answer to the question of the appointment of authorities in the public media should be sought in the Constitution, in convention law and in EU standards.

The value of the Constitution and the guidelines developed by the Constitutional Court, emphatically presented in particular in the judgment of 13 December 2016, is of course of primary importance (K 13/16).

The conclusions of the quoted judgment are unequivocal and boil down to respect for the separation and independence of the KRRiT and public media from the government, which should be guaranteed by appropriate statutory mechanisms.

According to the Constitutional Court: “The legislator is therefore to introduce such norms that will allow the KRRiT to ensure respect for freedom of speech, the right to information and the public interest in broadcasting. The shaping of the statutory model of the functioning of broadcasting cannot abstract from the content of the constitutional norms concerning the KRRiT. (...) The constitutional approach to the KRRiT, i.e. the nature of the tasks entrusted to this body and its system specificity, emphasising its independence from the government, indicate that it is the KRRiT that is to have a dominant position within the framework of the model of the functioning of the radio and television broadcasting, shaped by the legislator. It would therefore be contrary to this assumption, and thus unconstitutional, to entrust the performance of even a part of the KRRiT's tasks to a body independent of it, and at the same time linked - even to a small extent - to the government. In this sense, the limit of the legislator’s freedom in relation to the broadly understood sphere of broadcasting always remains to take into account, in this respect, the fundamental role of the KRRiT, as an organ of the state, resulting from constitutional norms.”

In addition, the need to respect media freedom and pluralism, as well as the right to receive and impart information without interference from public authority, can be derived from Article 11 of the Charter of Fundamental Rights of the European Union, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the European Act on Freedom of the Media, which was politically agreed by the European Parliament and the Council on 15 December 2023.

In my opinion, the consequence of the above-mentioned norms should be the introduction of statutory solutions that restore the KRRiT's competence in the process of appointing members of public media bodies and provide guarantees of the independence of the companies concerned from any governmental and political power.

The argumentation of the circles opting for personnel changes in the public media carried out on the basis of the CCC was, in short, as follows.

The regulations of the Broadcasting Act granting powers to shape the composition of public media bodies to the National Media Council (“RMN”) are secondarily unconstitutional and unjustifiably disregard the KRRiT’s constitutional position rooted in the Constitution.

Consequently, in the absence of a specific regulation, the general provisions of the CCC, which allow the members of the supervisory board to be appointed in the forum of the general meeting, should be applied.

In my view, the aforementioned position calls for polemics.

The provisions of the Constitution (aptly articulated in the cited judgment of the Constitutional Tribunal) formulate an unequivocal order addressed to the legislator (in practice, to each ruling camp of the time) to adopt such a statutory model that will minimally take into account the role of the KRRiT in the process of organisation and functioning of the public media, as well as ensure the separation of the latter from the executive power.

The above-mentioned canons are not fulfilled by either the general regulation of the CCC or the provisions of the Broadcasting Act granting competences to RMN.

Therefore, the appointment of the members of the bodies of TVP S.A., carried out on the basis of the provisions of the CCC or the competence regulations granting privileges to RMN, is, from my point of view, equally questionable if assessed solely through the prism of constitutional rigours.

At present, competing applications have been submitted to the Register of Entrepreneurs of the National Court Register for the entry of changes in the members of the bodies of TVP S.A. The entries in question have only declaratory rank (they confirm the existing state of affairs), but in the context of the ongoing dispute over the public media they will have (at least temporarily) a prejudicial character. This applies not only to the political battle, but also to strictly commercial relations, including with banks (due to the rigours imposed by banking secrecy), or courts adjudicating any disputes involving TVP S.A.

What is decisive in this respect is the scope of the jurisdiction (cognition) of the National Court Register as set out in Article 23(1) of the Act on the National Court Register, according to which the registry court examines whether the documents attached to the application comply with the provisions of the law in terms of form and content.

In my opinion, the verification of the legality of entry applications should also take into account the compliance of legal acts with constitutional standards (within the framework of diffuse control of the constitutionality).

As convincingly explained by the Supreme Court in its resolution of 20 January 2010 (III CZP 122/09): “(...) the registry court should ensure that only truthful data are included in the register (...). This follows from the functions and tasks of the National Court Register, institutionally linked to public books, which are intended to fulfil a general informative role in important areas of legal order, particularly with regard to the registration of legal transactions. They are characterised by the veracity of data, reliability, timeliness, completeness, the possibility of identifying the participants in a transaction, determining the sequence and time of their actions, their content, changes, etc.

(...) the protection of third parties acting in good faith on the basis of Article 14 of the Act on the National Court Register is possible only when the data contained in the register, or lack thereof, constitute a reliable source of information about the entities to which they relate. For persons seeking such information, the judicial nature of the register is not insignificant, and therefore the rightly asserted authority of the registry court, with which that court in the public perception guarantees the veracity of the data, since it has placed them in a register of official significance. (...)

The raising of (...) doubts as to the lawful conduct of a shareholders’ meeting (general meeting) requires the registry court to make appropriate findings as to the conformity of the data with the actual state of affairs (Article 23(2), second sentence of the Act on the National Court Register), leading to the determination of the validity or invalidity of the resolutions adopted due to the gravity of the breach of the statutory and statutory (contractual) provisions concerning the conduct of the meeting. If the resolutions are found to be invalid for the aforementioned reason, the data based on them must be refused entry in the register.”

Carrying out changes to public media bodies by invoking only code regulations is an opportunity for those in power to break with the status quo, but also a failed exam in constitutional law.

The ruling camp’s excuse is not the promise to present a bill introducing order in the public media that will do justice to constitutional standards in the unspecified future.

Political decision-makers should have been aware of the problem beforehand and prepared in advance for various scenarios also from a legal point of view.

Now the Gordian knot will have to be cut by the registry court, whether they want to or not.

From my point of view, as long as the law reconstituting the KRRiT’s powers, anchored in the Constitution, is not enacted, there is no possibility of electing the bodies of TVP S.A. in compliance with the legal order.

In such a situation, in the face of inertia or disinclination on the part of the legislative and executive powers, the field opens up for the judicial power, i.e. in this case the registry court.

It is possible that the registry court, after verifying the applications for entry and conducting a constitutionality test, will conclude that TVP S.A. cannot currently be represented by a body elected by any of the decision-makers and, in such a situation, in accordance with Article 42 of the Civil Code of 23 April 1964, will appoint a curator for TVP S.A. (ex officio or on application).

The time for which the curator will be appointed should be the maximum time for all political actors to work out a compromise on the public media and to pass a law that meets the requirements of the Constitution, civilisation and common sense.