Cristina Durnea, lawyer
Little or nothing has been said about the Council for Promotion of Investment Projects of National Importance (hereinafter referred to as the CPIPNI) and the levers of intervention in the audiovisual sphere imposed by the legislation earlier this year.
This relative or absolute silence could be explained by the fact that, since the new legal tool for suspending/withdrawing TV and radio licenses was developed, the authorities have demonstrated maximum lack of transparency, trying to reduce critical response in society. The new license revocation tools were “suggested” by clandestine legislators who added them to a set of amendments for the energy market at the last moment.
The decisive factor in this silence, however, is the fact that the intrusive tools of the new levers applied by the CPIPNI (suspension/revocation) are presumably used exclusively for struggling against the media machines belonging to Sor and Plahotniuc. Would any reasonable person dare to ask any questions about general admissibility of such tools used for suspending and withdrawing broadcasting licenses in a democratic society, or (“perish the thought!”) challenge them, considering that they are targeted at the “greater evil”?
Dear readers, let us proceed from the fact that the existence of this system affects all the stakeholders on the audiovisual media service market, both the “bad” ones and the “good” ones (according to the popular classification). No matter how noble the legislators’ intention was when the initiative was legislated, it is absolutely inadmissible in a democratic society. The fact that a council in charge of investments is currently empowered to decide whether to suspend or to withdraw a license, under unclear circumstances and without any court statement, raises equally great concerns for both the bad ones and the good ones within our society.
I share this belief due to the arguments listed below; I would like to summarize it in the following conclusions.
1. The amendment according to which the CPIPNI was authorized to suspend and to withdraw radio and TV stations’ broadcasting licenses was adopted in serious breach of the legislative procedure.
2. The mechanism as such does not comply with the criteria of accessibility, clarity, and predictability of the law.
3. A similar tool for suspending or withdrawing broadcasting licenses without any court decisions was previously declared unconstitutional.
4. The fact that the CPIPNI’s decisions cannot be suspended by the court is an evident and obvious example of restricting the right of access to justice.
5. The levers offered to the CPIPNI have a major potential to result in unjustified restriction of the right to freedom of expression and property rights.
Parthenogenesis of the New “Legal Solutions” for Revoking Licenses: Tradition and Mystery
Towards late 2023, which meant the end of the state of emergency and, implicitly, cessation of the effects of the CES’ decisions on suspending the 12 TV channels, it became obvious that the authorities intended to ensure that the fate of these channels remained unchanged. To comprehend the mystery and tradition behind the process of generating the new legal tool, the following chronological summary would be helpful.
On December 8, 2023, Prime Minister Dorin Recean announced that the 12 TV channels whose licenses had been suspended by the CES would not be allowed to broadcast in the new year[1], and four days later, Igor Grosu, President of the Parliament, spoke about the existence of the “legal solutions for a number of CES decisions, including the cessation of the 12 TV channels.”
The media’s attempts [December 15, 2023] to obtain the information about the “adopted legislative sets” and “existing legal solutions” failed, and the authorities kept the legal tools they intended to implement secret.
Only on December 29, 2023, both civil society and the general public had a chance to familiarize themselves with the legislative innovations; however, it occurred only after they had already been actually applied. It turned out that a structure known as the Council for Promotion of Investment Projects of National Importance was entitled to suspend broadcasting licenses while it examined certain information and documents required for the reason that the authority had detected that the six media outlets had “invested in the spheres important for the state security.”
How did this Council obtain such powers? It was quite simple. The Parliament received a set of amendments aimed at “ensuring integrity and functionality of the electricity market.” It was consulted and approved by the relevant authorities from August to November 2023 and voted in the first reading.
On December 18, 2023, four days before the final vote to be held on December 22, the draft law on the “electricity market” was completed with an amendment by deputies Radu Marian and Virgiliu Paslariuc. The articles added at the last moment included the tool for suspending TV channels’ licenses outside the state of emergency. They were voted in the final reading without holding any public consultations, promulgated on the same day (December 22), and published on December 23, 2023, respectively.
Can the urgency of the situation, the necessity, or the usefulness of such “solutions” be regarded as an excuse for neglecting the transparency factors in the decision-making process and ensuring the standards of quality of the law? It cannot be regarded this way. During the four days from registering the amendment (December 18) until the final vote (December 22), it was approved by the Government. Did the Group of Experts from civil society at the specialized parliamentary committee, whose copperation was praised by the Government at the European institutions, get enough time to do it, too? I suppose so.
For approximately a month, the “adopted legislative sets” and the “existing legal solutions” according to the statements by the leading government representatives were shrouded in mystery. Besides, the strategy of inserting major amendments in a clandestine way at the last moment, as well as publishing the decisions on implementing the legislated tools on Friday evenings, on the eve of the events which are likely to reduce public attention to zero, demonstrate that the previous traditions are still kept.
In the legal world, the above facts imply a serious breach of the legislative procedure. The amendment which included the new “legal solutions” for revoking licenses had nothing to do with the concept of the draft law it was inserted in; it did not comply with any decision-making transparency procedures; it was not subjected to expert assessment or consulted according to the mandatory procedures (no legal, economic, regulatory impact analysis took place, etc.). It should be emphasized that, according to the judicial practice of the Constitutional Court of the Republic of Moldova, it has been stated on multiple occasions that the failure to comply with the procedure stipulated by the Constitution, the Parliament Regulation, and Law No 100/2017 on Regulatory Acts are regarded as reasons for declaring a law unconstitutional [CCS No 11/2004; CCS No 28/2020; CCS No 8/2021; CCS No 4/2021, etc.]
About the Regulatory Tool as Such
The amendments clandestinely added on December 18, 2023, actually implied interventions in three laws (Law No 174/2021 on the Mechanism for Examining Investments Important for the State Security; Law No 160/2011 on Regulating Entrepreneurial Activity by Authorization; Law No 235/2006 on Fundamental Principles of Regulating Entrepreneurial Activity).
As to the last two regulatory acts, the legislation contained derogations from the general rules of temporary suspension and withdrawal of licenses/authorizations for entrepreneurial activity, or, in other words, rejected some of the fundamental principles of regulating entrepreneurial activity.
The amendments to the Law on the Mechanism for Examining Investments Important for the State Security (hereinafter referred to as Law No 174/2021) are of a more complex nature. This regulatory act intended for protecting investments and increasing transparency of investments important for state security listed “TV broadcasts/audiovisual services” as areas of importance for state security since its adoption (2021).
According to the law, before practicing investment activities in the sphere of audiovisual media services, any prospective investor shall obtain preliminary approval from the Council for Promotion of Investment Projects of National Importance (hereinafter referred to as the CPIPNI); its composition can be consulted here.
Upon examining the prospective investor’s application, the CPIPNI could grant, deny, or conditionally offer preliminary approvals. If the investor has already made some investments with certain breaches or without obtaining a preliminary approval, the CPIPNI was entitled to order, for instance, to suspend enjoying the right to vote, to convene the general meeting of the shareholders of the owner of a TV channel’s broadcasting license, to suspend the right to obtain income from profit distribution, etc.
Along with the amendments coming into force on December 23, 2023, the CPIPNI is also empowered to suspend media service providers’ broadcasting licenses for the term necessary to provide beneficial ownership information or other data indicating en eventual breach of the provision regarding the change of control. In such situations, the CPIPNI’s decision is enforceable from the moment of being issued.
Afterwards, if the CPIPNI confirms the non-compliance with the provision regarding the change of control or identifies any other situations which make the party ineligible for approval, it may demand to alienate some shares or to annul certain transactions.
If the action prescribed by the CPIPNI is not implemented within 60 days, the executive authority of the legal entity which is the founder of a TV channel must cancel the shares and issue them again within 15 days at the most. If it fails to do so, the CPIPNI can withdraw the broadcasting license of the media service provider in question.
Briefly and in simple terms, until December 2023, the Law used to provide for the following:
- the CPIPNI is the governmental structure in charge of approving investment initiatives and projects;
- no investment or economic transaction is possible without the Board’s approval;
- investments already made were supposed to obtain a positive approval from the CPIPNI; otherwise, the economic entity had to refuse from investments, cancel transactions, alienate shares, etc.
* TV channels or radio stations were not subject to this procedure until December 2023.
After the modifications introduced in December 2023:
- the law allows temporarily suspending or withdrawing entrepreneurial activity licenses (or broadcasting licenses, as the case may be) if the CPIPNI’s preliminary consent is not obtained;
- a decision to suspend or to withdraw broadcasting licenses is enforceable immediately and does not require any court statements;
- a tool for deprivation of the right of ownership of the investments/shares has been established in case if the Council does not approve the investments or the list of beneficiaries.
Suspending or Withdrawing a Broadcasting License without a Court Statement Is Unconstitutional
In the distant times of 2012, the previous version of the Broadcasting Code provided for a possibility of suspending and withdrawing broadcasting licenses by the Broadcasting Council (BC), which was referred to as the Coordinating Broadcasting Council (CBC). Such a decision made by the BCC, as in the case of the CPIPNI, was enforceable from the day of issue (more exactly, from the day of informing the subjects concerned in the case of the CBC), and no court statement was required.
The provisions in question were subject to constitutional review, and the Constitutional Court (CC) declared them unconstitutional on December 6, 2012.
The CC mentions that temporary or permanent revocation of broadcasting licenses indisputably implies interferences with freedom of expression guaranteed by Art. 32 of the Constitution of the Republic of Moldova and Art. 10 of the European Convention on Human Rights (ECHR) [see, among others, Nur Radyo Ve Televizyon Yayıncılığı A.Ș. v. Turkey (No 2) of October 12, 2010].
While assessing whether the interference complied with these provisions, the Court assumed it was stipulated by the law and pursued a legitimate aim within the context of Art. 10 § 2, and focused on considering whether it was “necessary in a democratic society.” In this context, the CC referred to the general principles of the ECtHR jurisprudence [see, among others, Handyside v. Great Britain, December 7, 1976, §49, Radio France and others v. France, Gunduz v. Turkey, §40, and Giniewski v. France, §§44 and 52].
The CC assessed whether the administrative procedure initiated and implemented by the CBC could guarantee audiovisual media service providers the protection based on Art. 10 of the ECtHR. In particular, the CC assessed whether it offered protection against arbitrariness, in particular, considering that the CBC’s decision is enforceable, and therefore, it could have an immediate impact on the audiovisual media service provider’s right to broadcast.
The constitutional court concluded that such steps as suspending or withdrawing audiovisual media service providers’ licenses could have its impact on the essence of the procedural guarantees broadcasters were supposed to enjoy pursuant to Art. 10 of the ECtHR and was incompatible with the principle of the rule of law.
Consequently, the CC concluded that, due to the particular circumstances of the case, such an interference with the TV channels’ or radio stations’ right to freedom of expression, such an approach does not comply with the provision of being “necessary in a democratic society”; therefore, it contradicts Art. 32 of the Constitution and Art. 10 of the ECtHR. The CC claims that “the decision to suspend a broadcaster’s license has the same effect as its ‘annulment’.”
“Considering that the CBC is an authority susceptible to politicization, its decision to suspend or to withdraw a broadcaster’s license can result in censorship or self-censorship: in both cases, it is equally threatening to freedom of expression and the public’s right to information. Due to the special importance of freedom of expression for a democratic society susceptible to political pressure and censorship, the only authority which, according to the democratic and constitutional principle of the separation of powers within the state, is able to conclude that a particular citizen has seriously breached the legislation, including in case of abusive enjoyment of freedom of expression, is the judicial authority which is supposed to benefit from all the guarantees of independence,” the CC specifies.
(Un)Safety of Legal Relations. Lack of Accessibility, Clarity, and Predictability of the Law
Accessibility, predictability, and clarity of the law presume that the legislative rules are supposed to be formulated with sufficient precision to allow individuals to examine their own conduct and to reasonably foresee the consequences of this conduct, depending on the circumstances of a particular case.
The law on the basis of which the CPIPNI suspends and revokes the licenses provides (Art. 6) for inadmissibility of investments by individuals and legal persons who:
– “have been involved in money laundering activities and terrorist financing”;
– “could practice illegal or criminal activities, according to justified information provided by the competent state authorities”;
– “are or were connected with organized criminal groups, special services, or groups of foreign states connected with international terrorist organizations, with persons suspected of being their members, and increasing the risk or representing a threat to the national security of the Republic of Moldova.”
The law does not specify what “involvement” or being “connected” exactly implies, and such vague phrases have an enormous potential for multiple interpretations. The standard formulated as “could practice illegal activities” is even more dubious and unpredictable. It is based on probabilities and speculations instead of clear, definite, and “assessable” criteria.
In addition, Art. 7 of the law includes a list of information and documents the CPIPNI can request from TV channels and radio stations (“the structure of the registered capital stock (shareholders/associates); the maximum amount of the investment in monetary units; financial statements for the last 3 years, etc.”). The same article includes the Government’s right to request other documents and information than those expressly listed by the law if they are required for examination of a request for preliminary approval. Hence, there is no limit to the amount of information, and no predictability for potential investors, either.
These are several examples of derogatory, vague, contradictory, and unclear rules which seriously breach the principle of safety of legal relations, as well as the principle of legality and predictability of the legal framework.
In its activity, the European Court of Human Rights (ECtHR) emphasizes the importance of providing accessibility and predictability of the law by applying a number of benchmarks the legislator is supposed to take into account to comply with these requirements. According to the ECtHR, only a standard formulated with the precision sufficient to allow an individual to behave in a correct way can be regarded as a “law.” In particular, a standard is considered to be foreseeable if it provides a certain guarantee against arbitrary actions of public authorities (see Amann v. Switzerland, judgment of February 16, 2000, §56). The test of the precision of the law requires that the law, in situations where it stipulates a certain margin of discretion, indicate the limits with sufficient clarity (see Silver and others v. the United Kingdom, judgment of March 25, 1983, §80).
Revelations
In the last few months, the CPIPNI has shown its concern not only about the TV channels “associated with some fugitive oligarchs,” but also about many other audiovisual media outlets both in the capital and in the regions. Hypothetically, any TV channel’s broadcasting can be suspended (without providing any clear reasons) while this Council examines its file, and after that, its license can be withdrawn due to some illusory explanations (e.g. “it might be involved in illegal or criminal activities”). The Council’s decisions cannot be suspended by any courts. It might take at least two years (*according to an optimistic expectation) to get a license back after the decision becomes final.
It should be mentioned, among other things, that recently, the Elita TV regional TV channel, which complied with the CPIPNI’s request to provide all the information expressly listed in the law, has received, along with several other media outlets, an additional notification demanding to send to the Council “additional information on the bank transactions for all the resident and non-resident accounts owned by the company, on the income registered by the cash register equipment from January 1, 2022, to July 8, 2024, as well as on the bank account transactions of the company’s beneficial owners and administrators from January 1, 2022, to July 8, 2024.”
Are these levers as such a potential source of exerting pressure on the audiovisual media? Yes, they are. I believe this tool has every chance of inducing self-censorship on any channel, even the “most independent” one, if the Council focuses its attention on it. Can a TV channel’s editorial policy be courageous if its fate depends directly on the Council’s unlimited discretion? This experience is quite stressful, including in the case of Elita TV, which, by the way, intends to provide the above data.
The “miraculous filter” for identifying the media affiliated with Sor may be efficient, but it is incompatible with the principles of a democratic state. The existence and activity of audiovisual media service providers should not be dependent on such legal tools lacking accessibility, clarity, or predictability, and adequate legality control should be applied.
Finally, I keep wondering whether this miraculous filter could have been acceptable in the epoch marked by the Plahotniuc/PRSM regime – and how “happy” we could be if we inherited this filter from another government, a previous one.
This analysis is made possible by the generous support of the American and British people through the United States Agency for International Development (USAID) and UK. The contents are the responsibility of IJC and do not necessarily reflect the views of UK, USAID or the United States Government.