Polish constitutional court rules government’s measures to take over public media unconstitutional

Poland’s Constitutional Tribunal (TK) has ruled that using commercial law to implement changes in the management of public media or to liquidate them – the methods used last month by the government – is unconstitutional.

The government immediately responded by declaring the TK’s ruling to be invalid because it involved a judge illegitimately appointed under the former Law and Justice (PiS) government and two others who had a conflict of interest due to being former PiS MPs. The TK is widely seen as being under PiS influence.

The new government’s takeover of public media prompted protests from the former ruling PiS party. But it also raised doubts among legal experts.

We asked three such experts – @K_Izdebski, @MichaRomanows14 and Dominika Bychawska-Siniarska – for their views https://t.co/u9QAMFX2Zk

— Notes from Poland 🇵🇱 (@notesfrompoland) December 26, 2023

Today’s judgement was made in response to a request to the TK by PiS MPs submitted shortly before the new government used commercial law to justify removing and replacing the management of public media outlets. The government also later unilaterally put those outlets into liquidation.

The TK today declared that a provision of the media law allowing the commercial code to be applied to state broadcasters TVP and Polskie Radio cannot be used to dissolve or place those entities into liquidation, reports the Gazeta Wyborcza daily.

It also found that using of the commercial code to dismiss the managerial boards of those companies does “not have any legal effect”.

One of the TK judges, Jarosław Wyrembak, said that liquidation of public media outlets requires legislative measures and that decisions on dismissing the management board are the exclusive competence of the National Media Council (RMN), reports Business Insider Polska

🇵🇱⚖️📺Meanwhile, the Constitutional Tribunal entirely predictably, over 2 days, finds that liquidating state-owned media companies is incompatible with the Constitution. I think I can stop waiting for the actual judgment and conclude based on applications by PiS deputies. pic.twitter.com/5dRNaGPnnT

— Jakub Jaraczewski (@J_Jaraczewski) January 18, 2024

However, soon after the TK announced its ruling today, culture minister Bartłomiej Sienkiewicz – who was responsible for implementing the government’s takeover of public media – issued a statement declaring the tribunal’s verdict to have “no legal significance”.

He pointed to judgments by Polish and European courts that have found the TK to no longer constitute a legitimate body due to the changes made to it under the PiS government.

In particular, Sienkiewicz noted that Wyrembak is a so-called “doubler” judge appointed illegally in place of legitimate judges nominated by the pre-PiS government. His ministry also said that Julia Przyłębska, the judge who chaired today’s panel, was incorrectly appointed as chief justice of the TK.

Finally, the ministry noted that two more of the TK judges involved in today’s ruling, Krystyna Pawłowicz and Stanisław Piotrowicz, former PiS MPs who had been involved in changes to the very media law on which the tribunal was today issuing a judgement. That “undermines their ability to remain objective”.

Komunikat Ministra Kultury i Dziedzictwa Narodowego w sprawie wadliwego wyroku Trybunału Konstytucyjnego w sprawie stosowania przepisów umożliwiających likwidację spółek akcyjnych oraz przepisów umożliwiających odwołanie lub zawieszenie w czynnościach przez walne zgromadzenie… pic.twitter.com/wvLstrWHEi

— Ministerstwo Kultury i Dziedzictwa Narodowego (@kultura_gov_pl) January 18, 2024

The Polish government, which took office last month, has argued that radical measures were needed to “depoliticise” public broadcasters that had been turned into propaganda mouthpieces by PiS.

However, many legal experts expressed doubt about Sienkiewicz’s use of commercial law to replace TVP and Polskie Radio’s management. Last week, a commercial registry court effectively agreed with them, rejecting the government’s move.

But that initial action by Sienkiewicz was effectively superseded by his subject decision to put the public broadcasters into liquidation, a move that has raised fewer legal doubts although has now also effectively been rejected by the TK.

A court has rejected last month’s decision by the new Polish government to change the management of state broadcaster TVP.

It did not accept the legal basis used by the culture minister to justify the move https://t.co/MjUyvbdnvv

— Notes from Poland 🇵🇱 (@notesfrompoland) January 10, 2024

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Main image credit: Adrian Grycuk / Wikimedia (under CC BY-SA 3.0 PL DEED)

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.