{"id":10196,"date":"2024-07-26T09:00:00","date_gmt":"2024-07-26T06:00:00","guid":{"rendered":"https:\/\/media-azi.md\/asa-nu-audiovizualul-sub-suzeranitatea-unui-consiliu-responsabil-de-examinarea-investitiilor\/"},"modified":"2024-08-12T14:27:47","modified_gmt":"2024-08-12T11:27:47","slug":"asa-nu-audiovizualul-sub-suzeranitatea-unui-consiliu-responsabil-de-examinarea-investitiilor","status":"publish","type":"post","link":"https:\/\/media-azi.md\/en\/asa-nu-audiovizualul-sub-suzeranitatea-unui-consiliu-responsabil-de-examinarea-investitiilor\/","title":{"rendered":"That WON\u2019T Do! Broadcasting Services under the \u201cAegis\u201d of a Council in Charge of Examining Investments?"},"content":{"rendered":"\n

Cristina Durnea, lawyer<\/strong><\/p>\n\n\n\n

Little or nothing has been said about the Council for Promotion of Investment Projects of National Importance<\/em> (hereinafter referred to as the CPIPNI) and the levers of intervention in the audiovisual sphere imposed by the legislation earlier this year.<\/p>\n\n\n\n

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 \u201csuggested\u201d by clandestine legislators who added them to a set of amendments for the energy market at the last moment.<\/p>\n\n\n\n

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 (\u201cperish the thought!\u201d) challenge them, considering that they are targeted at the \u201cgreater evil\u201d?<\/p>\n\n\n\n

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 \u201cbad\u201d ones and the \u201cgood\u201d ones (according to the popular classification). No matter how noble the legislators\u2019 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<\/strong> for both the bad ones<\/em> and the good ones<\/em> within our society.<\/p>\n\n\n\n

I share this belief due to the arguments listed below; I would like to summarize it in the following conclusions.<\/p>\n\n\n\n

1. <\/strong>The amendment according to which the CPIPNI was authorized to suspend and to withdraw radio and TV stations\u2019 broadcasting licenses was adopted in serious breach of the legislative procedure.<\/p>\n\n\n\n

2. <\/strong>The mechanism as such does not comply with the criteria of accessibility, clarity, and predictability of the law.<\/p>\n\n\n\n

3<\/strong>. A similar tool for suspending or withdrawing broadcasting licenses without any court decisions was previously declared unconstitutional.<\/p>\n\n\n\n

4. <\/strong>The fact that the CPIPNI\u2019s decisions cannot be suspended by the court is an evident and obvious example of restricting the right of access to justice.<\/p>\n\n\n\n

5<\/strong>. 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.<\/p>\n\n\n\n

Parthenogenesis of the New \u201cLegal Solutions\u201d for Revoking Licenses: Tradition and Mystery<\/strong><\/p>\n\n\n\n

Towards late 2023, which meant the end of the state of emergency and, implicitly, cessation of the effects of the CES\u2019 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.<\/p>\n\n\n\n

On December 8, 2023<\/strong>, Prime Minister Dorin Recean announced<\/a> that the 12 TV channels whose licenses had been suspended by the CES would not be allowed to broadcast in the new year[1]<\/sup><\/a>, and four days later<\/strong>, Igor Grosu, President of the Parliament, spoke<\/a> about the existence of  the \u201clegal solutions <\/strong>for a number of CES decisions, including the cessation of the 12 TV channels.\u201d<\/p>\n\n\n\n

The media\u2019s attempts<\/a> [December 15, 2023] to obtain the information about the \u201cadopted<\/strong> legislative sets\u201d and \u201cexisting<\/strong> legal solutions\u201d failed, and the authorities kept the legal tools they intended to implement secret.<\/p>\n\n\n\n

Only on December 29, 2023<\/strong>, 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<\/a>. It turned out that a structure known as the Council for Promotion of Investment Projects of National Importance <\/em>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 \u201cinvested in the spheres important for the state security.\u201d<\/p>\n\n\n\n

How did this Council obtain such powers? It was quite simple. The Parliament received a set of amendments<\/a> aimed at \u201censuring integrity and functionality of the electricity market.\u201d It was consulted and approved by the relevant authorities from August to November 2023 and voted in the first reading.<\/p>\n\n\n\n

On December 18, 2023<\/strong>, four days before the final vote to be held on December 22<\/strong>, the draft law on the \u201celectricity market\u201d was completed with an amendment<\/a> by deputies Radu Marian and Virgiliu Paslariuc. The articles added at the last moment included the tool for suspending TV channels\u2019 licenses outside the state of emergency. They were voted in the final reading without holding any public consultations<\/strong>, promulgated on the same day (December 22), and published on December 23, 2023, respectively.<\/p>\n\n\n\n

Can the urgency of the situation, the necessity, or the usefulness of such \u201csolutions\u201d 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<\/a> 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.<\/p>\n\n\n\n

For approximately a month, the \u201cadopted legislative sets\u201d and the \u201cexisting legal solutions\u201d according to the statements by the leading government representatives were shrouded in mystery<\/u>. 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<\/u> are still kept.<\/strong><\/p>\n\n\n\n

In the legal world, the above facts imply a serious breach of the legislative procedure. The amendment which included the new \u201clegal solutions\u201d 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.]\n\n\n\n

About the Regulatory Tool as Such<\/strong><\/strong><\/p>\n\n\n\n

The amendments clandestinely added on December 18, 2023, actually implied interventions in three laws (Law<\/a> No 174\/2021 on the Mechanism for Examining Investments Important for the State Security; Law<\/a> No 160\/2011 on Regulating Entrepreneurial Activity by Authorization; Law<\/a> No 235\/2006 on Fundamental Principles of Regulating Entrepreneurial Activity).<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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 \u201cTV broadcasts\/audiovisual services\u201d as areas of importance for state security since its adoption (2021).<\/p>\n\n\n\n

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<\/a>.<\/p>\n\n\n\n

Upon examining the prospective investor\u2019s 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\u2019s broadcasting license, to suspend the right to obtain income from profit distribution, etc.<\/p>\n\n\n\n

Along with the amendments<\/a> coming into force on December 23, 2023, the CPIPNI is also empowered to suspend media service providers\u2019 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\u2019s decision is enforceable from the moment of being issued.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Briefly<\/strong> and in simple terms, until December 2023, the Law<\/a> used to provide for the following:<\/p>\n\n\n\n