Transparency is country’s sovereign right (II)

I. The meaning and objective of the national provisions of article 14, par. 9 of the Constitution and its implementing legislation The factual and legal grounds for the adoption and formulation of the whole context of the national regulation on incompatible capacities of article 14, par. 9 of the Constitution should be first clarified, in order to specify the objective that is pursued by these important national provisions. A. The occasio constitutionis of article 14, par. 9 of the Constitution The adoption of the constitutional provision of article 14, par. 9, was not an arbitrary choice of the Greek legislator during the revision of the Constitution. This particular provision, with respect to its aim, was supported by all the country’s political forces and was finally voted by the 7th Reviewing Parliament in 2001 with an increased majority. This was due to the fact that all political parties together recognized the critical situation that existed in Greece in relation to distortion of the media’s role and, consequently, to the existence of phenomena of undue influence exercised by the media over the country’s economic and political life. This specific problem of non-transparency which appeared in Greece is indeed of a particular nature, beyond the limits of usual corruption, which is characterized by proven and direct influence of third parties on a specific public law relationship, contractual or non contractual. The non-transparency issue, which the domestic legal order was called upon to remedy, is mainly due to the aforementioned distortion of the media’s role and mission because of the pursuing on the part of participants in some of them of major financial transactions with the state itself, and thus to their indirect but still existing – and consequently not easily to avert or be proven – influence on the state’s financial operations and in particular on the conclusion of public contracts. These phenomena of non- transparency had led to an unbearable situation that generates motives and creates the risk of such unlawful influence, a «latent influence», which cannot be covered by the common provisions on corruption. Intense problems of transparency have been highlighted – in particular in its last 2004 report – by the internationally recognized non-governmental organization «International Transparency», as well. The report, in fact, speaks positively of the efforts made by Greece to impose transparency rules in the media and public contract sectors by virtue of the provisions of article 14, par. 9 of the Constitution and its implementing legislation. As a result, precisely because of the special nature of the phenomenon of non-transparency in the country’s internal public life and the inconspicuous and indirect processes that generate such phenomenon, there was no other solution for overcoming it, given the special circumstances of the Greek case, than the specific regulation of article 14, par. 9 of the Constitution. The reason for this is that imperative reasons of public interest rendered necessary the reviewing of the Greek Constitution to this direction. If that issue of non-transparency in the public sector had not reached such proportions and was not characterized by the above mentioned special circumstances, the need to review article 14 of the Constitution would not have arisen. B. The ratio constitutionis of article 14, par. 9 of the Constitution The answer to the questions you have posed logically requires that the legitimate aim, under Community law, pursued by the critical national provisions, and mainly of the Greek Constitution, be substantiated. In accordance with the provision of article 14, par. 9 of the Constitution, «the assets, the financial situation and the sources of funding of the media should become known, as the law defines. A law specifies the measures and restrictions, which are necessary to fully ensure the transparency and plurality of information. It is forbidden to have a controlling stake in more than one media of the same or other type. It is especially forbidden to control more than one electronic medium of the same type, as stipulated by the law. The capacity of owner, partner, «basic» shareholder or executive of a media company is incompatible with the capacity of owner, partner, «basic» shareholder or executive of a company that undertakes, for the State or a legal entity of the wider public sector, the execution of public works or procurements or the provision of services. The prohibition of the previous subparagraph also applies to any kind of related persons such as spouses, relatives, financially dependent persons or companies. Law specifies the particular provisions, the sanctions, which may extend to the revoking of a radio or television station’s license, the interdiction to conclude agreements or the cancellation of the relevant agreement, as well as the methods of control and the guarantees for avoiding circumventions of the foregoing subparagraphs». Under these provisions, the constitutional legislator prohibits the major financial transactions (of considerable financial consideration) between the media and the state, in particular in the public contracts sector, considering that such transactions, which depart from the media’s mission, create a serious risk of distorting both the latter’s role as well as the state’s economic functions. This is because, it is commonly accepted that the media, in general, and especially, the radio-television media, exert decisive influence on forming the public opinion and, in the end, the country’s political life. Therefore, the provision of information to citizens by the mass media, which are involved in direct financial transactions with the state, have as a consequence, by definition, a risk that such activity is not intended to provide pluralistic and objective information to people, but to present and comment on facts related to the state’s activity in a way tending to serve the media’s private economic interests within the courses of their relationship with the state authority. As a result, the ratio of the national constitutional provision and the provisions of the implementing laws is to prevent the creation of situations (which because the owner of an information medium is at the same time the contractor of a public contract) may, in general, create the risk of distorting plurality and objectivity of information, as common experience has shown, and therefore, render appealing the exercise of undue influence on the state’s economic operations and in particular on the awarding of contracts, in an indirect and inconspicuous manner and thus not easily prevented or proven. The purpose therefore is not to control the common cases of corruption by dealing after the fact with these particularly severe forms of violation of legality – for which the relevant Directives provide, as explained below- but to combat the lack of transparency, which creates an intolerable situation that generates motives as well as risk of undue influence by the mass media on public life and of distortion of the plurality and objectivity of information. This applies, in particular, to radio and television, considering the express provision of article 15, par. 2 of the Greek Constitution, according to which, the objective of the mass media is, inter alia, «to broadcast information and news objectively and under equal conditions for all, as well as products of literary and artistic creation…as imposed by the social mission of radio and television and the country’s cultural development…». It is noted that this aim and, in particular, the principle of pluralism and objectivity for the operation of the mass media, is an aim of democratic, social and cultural public policy aiming at protecting the general interest, which is recognized by Community law. The principle of pluralism does not merely rely on the existence of a large number of mass media companies, operating under the principles of free competition, but mainly on the way in which they operate so that they are able to express a range of political, social, philosophical and cultural trends. In accordance with their mission and the pluralism principle, therefore, the mass media’s aim is also to criticize the activities of any public authority, without being driven by any self-interested considerations relating to this authority. It is evident that, because of that role, the media, and especially the radio and television, that use public resources, such as frequencies, may not deviate from their mission either by infringing the principle of pluralism and objectivity, or even more so, by supporting, directly or indirectly, private interests in order to exert an undue influence over state authority. Consequently, the national constitutional legislator has regulated this issue by pursuing to satisfy the imperative public interest requirements, consisting of guaranteeing the pluralism and objectivity of the mass media, whilst protecting the state’s economic functions. Both these aims lead to safeguarding transparency in the country’s economic and political life, as was acknowledged by the Council of State (Conseil d’ Etat) in decision 1882/2003 (of its 7-member chamber), as well as in decisions 3242 and 3243/2004 (which referred the case to the plenary session of the Court). In fact, the particular provision of paragraph 9 of article 14 of the Constitution was deemed to be so important that the Council of State, after an extensive analysis of the importance of the aim of the constitutional provision, explicitly concluded, in the abovementioned decisions, that this provision aims, inter alia, to preventing undue influence on the formation of political life, «which could lead, in the end, to the distortion of popular sovereignty which constitutes (article 1, par. 2 of the Constitution) the cornerstone of democracy». The Constitution’s implementing laws (3021/2002 and 3310/2005) achieve the specific objective of the constitutional legislator through the control exercised by an Independent Authority enshrined in the Constitution, the Greek National Council for Radio and Television (NCRTV), in order to determine whether the provisions on the incompatibility of functions between the mass media companies and those concluding public contracts are violated. Because of the fundamental importance of the objective pursued and the rights protected, this control is performed for every public contract (exceeding Euro 1 million), with the view to avoiding, to the extent possible, infringements and circumventions of the law that have as a consequence the distortion of the mass media’s role and deviation from their mission, resulting further in seriously damaging the country’s political life and its economic activities, in accordance with the above. Taking into consideration the the EC Treaty, as numbered after the Treaty of Amsterdam, this objective is a legitimate objective (but legitime) that unquestionably aims at safeguarding imperative requirements (exigencies imperatives), such as the observance of transparency in the state’s economic functions by avoiding the exercise of undue influence, the prevention, for such reason, of any distortion in the development of free competition, and the exclusion of any phenomena relating to the operation of mass media, not in order to provide objective information and exercise criticism, but instead in order to further promote the mass media private interests related to the use of undue influence on state authority, in violation of pluralism (ECJ 26.6.1997, Vereinigte Familiapress Zeitungsverlags-und vertriebs BmbH c/ Heinrich Bauer Verlag, C-368-96, Comp. 1997, 1 p. 03689, ECJ 3.2.1993, Vewreniging Veronica Omroep Organisatie contre Commissariaat voor de media, C-148-91, Comp. 1993, 1, p. 00487, ECJ 25.6.1991, Stichting Collectieve Antennevoorzieing Gouda et autres c/ Commissariaat voor de Media, C-288/89, Comp. 1991, 1, p.04007). In accordance, furthermore, with the decision «Veronica» (C-148/91) which decided that the Dutch law on electronic mass media is compatible with Community law: «… the Mediawet is designed to establish a pluralistic and non commercial broadcasting system and thus forms part of a cultural policy intended to safeguard, in the audio-visual sector, the freedom of expression of the various (in particular social, cultural, religious and philosophical) components existing in the Netherlands….. . Those cultural-policy objectives are objectives relating to the public interest which a Member State may legitimately pursue by formulating the statutes of its own broadcasting organizations in an appropriate manner. Article 57(1) of the Mediawet contributes to the attainment of those objectives. It seeks to prohibit national broadcasting organizations from engaging in activities which are alien to the tasks assigned to them by the Law or undermine the aims thereof, in the view of the Commissariaat voor de Media. Thus, in particular, it provides that the financial resources available to the national broadcasting organizations to enable them to ensure pluralism in the audio-visual sector must not be diverted from that purpose and used for purely commercial ends».