Stabilization and Association Agreement between Montenegro and European Union, in accordance with dynamics envisaged by strategic documents on accession, had defined one of the priority commitments of Montenegro – harmonization of legislation with the EU acquis. Bearing in mind that the Agreement came into force in May 2010, Montenegro was obliged to harmonize its legislation with European acquis in relevant sectors and to implement it efficiently, including the field of media as well.
The law on electronic media that was amended for the last time in 2011 caused divided opinions and started wider public debate regarding the provisions that refer to state assistance to public broadcasters. A draft Law on electronic media envisages it should come into force on 1st January 2016. The subject of amendment is harmonization with Audiovisual Media Services Directive (Directive 2010/13/EU of the European Parliament and Council, 10th March 2010) and implementation of the rules regarding state aid to public broadcasters to meet the requirements from Chapter 8 – Competition.
Members of the Working group preparing the Draft have a series of objections to the existing Law, such as objections to the work of Fund for the promotion of media pluralism, raising the quota assessment of own production etc. Acquis in the field of competition encompasses antimonopoly policy and control of the state aid policy. It includes rules and procedures for suppression of anticompetitive behavior (restrictive agreements between companies and dominant position abuse), careful monitoring of concentration of companies and preventing Governments to award state aid that violates competition on inner market.
One of the main priorities of proposer of amendments to the Law, Ministy of Culture, had advocated for introduction of clearer rules for state aid to public broadcasters, but also an increase of transparency of financing local public broadcasters, along with harmonization with Audiovisual Media Services Directive.
Legal and institutional frame in the field of financing media from public finances
Three laws regulate this field: Law on protection of competition, Law on state aid control and Law on electronic media. The Law on protection of competition, which came into force in October 2012, represents the main regulation that controls method, procedures and measures for protection of competition in Montenegro. The Law applies to all forms of prevention, restriction or distortion of competition by the participants on the Montenegrin market, but also to acts and actions taken or committed outside its territory that result in a breach of competition in the territory of Montenegro. The Law provides for an independent authority that performs tasks and responsibilities within the scope of this Law – Agency for Protection of Competition of Montenegro.
By enacting a Law on state aid control, passed by Montenegro Assembly on 9th November 2009 (“Official Gazette of the Republic of Montenegro” 74/09, 13th November 2009; 57/11, 30th November 2011), conditions and procedure for awarding and controlling the use of state aid are being regulated, along with implementation of principles of market economy, preservation of competition and ensuring transparency in fulfilling the obligations assumed under ratified international treaties.
In the countries of the region, Serbia and Croatia, exist a special law regarding prohibited media concentration, which regulates market transparency and prevention of monopoly. However in Montenegro, due to lack of lex specialis on the issue of media concentration, this problem is regulated by analog use of Law on protection of competition (“Official Gazette of the Republic of Montenegro” 44/2012, 9th august 2012). By passing the Law on protection of competition (“Official Gazette of the Republic of Montenegro” 69/2005), which came into force on 1st January 2006, for the first time in Montenegro cartels (forbidden agreements), concerted practices which distort or prevent competition (cooperation of the participants without the conclusion of a formal agreement), abuse of dominant position and other circumstances affecting the violation of competitive practices were outlawed. The Law also includes the control of concentration, which is an additional new instrument that is recognized in Law on protection of competition.
A series of objections to the Draft
However, expert public, representatives of media and NGO sector in Montenegro made a series of objections to Ministry of Culture.
Association of local broadcasters demands that “a stable system of finance should be legally established, a system that would be uniform on a state level and independent from political and economic influences”, with an explanation that in that way they become independent from goodwill of local government. Željko Rutović, General director of Directorate for Media (Ministry of Culture), evaluated the proposal as a “completely uncritical and unprofessional proposal to determine percentage of financing transferred from state to local level”. He also added that it would be unpopular move that isn’t applicable in reality, nor it is a constitutional category.
Proposal were also submitted by a member of the working group for preparation of the Draft for amendments of the Law on electronic media, Goran Đurović, and NGO Center for civil education (CGO), Center for development of NGO (CRNVO), Center for monitoring and research (CEMI), Institute Alternative (IA) and Juventas. Their proposal referred to regulation of minimal percentage (25%) of own production for all electronic broadcasters that want to receive broadcasting license. The proposal also envisaged that in the case of non-compliance with this percentage, broadcaster can get his license revoked.
Montenegro did one more step in creating conditions for progress and development of free market competition in 2013, by founding Agency as an independent authority for monitoring policy of competition and securing conditions for free enterprise. That was also one of the main demands of European Commission in process of permanent negotiations regarding the fulfillment of all conditions of Chapter 8.
Lawsuit for unfair competition against TV Pink M and daily newspapers “Pobjeda”
In the light of current law amendments, two cases have accompanied argumentation of both sides. One is concerned with a lawsuit of “Daily press” company, which owns television, newspapers and web portal, against TV Pink M company and daily newspapers “Pobjeda” for unfair competition and “negative campaign with the aim to damage reputation and business of newspapers and web portal”. A lawsuit submitted to Commercial Court demands compensation in the amount of 660,000 Euros. Željko Ivanović, General Manager of “Vijesti” newspapers, explained that the lawsuit was filed for joint criminal enterprise – damage of reputation of our media and their destruction, filed after month long dirty campaign by TV Pink M and “Pobjeda”.
However, the executive and program manager of TV Pink Montenegro Goran Radenović claims that “Daily press”, owned by Miodrag Perović and Željko Ivanović, filed the lawsuit demanding compensation in the amount of 660,000 Euros, exactly the amount of their debt of state taxes, although he "believes that this figure is much higher”. The lawsuit against “Pobjeda” has been rejected because of bankruptcy, and “Daily press” continued with lawsuit against Pink Montenegro. Radenović has also clarified that in Montenegro there was a general decline in marketing budgets for both the electronic and print media.
As it was already mentioned, the case is still in process, and also it’s about disputed relationship regulated by positive legal regulations. Also, resolution of the aforementioned disputed relationship is in the functional competence of the Commercial Court. Because the decision in present proceeding has not yet been made, the court must determine whether the competition was violated, and also to determine compensation if that is the case. Like in any democratic society where judicial authorities guarantee respect for the legal order and legality, by the enactment of aforementioned regulations, judiciary is in the position to protect society and, in this case, legal entity from unfair competition. So, in case that the claim of “Daily press” is found justified, that would send signals to media to respect positive positive legal regulations to a higher degree.
The Law on electronic media in Analytic report, accompanying document to Opinion of EC on membership of Montenegro in EU (November 2010), was rated as a good foundation for development and regulation of public broadcasters and, more broadly, for independence and professionalism of media. The Law was also rated as harmonized with Directive on Audiovisual Media Services. At the same time, draft of the Law on amendments to the Law on electronic media (April 2015) was proclaimed as a good guideline for meeting the conditions from Chapter 8 – Competition.
By enacting the aforementioned laws a significant step forward in media reform has been made, founded on principles of freedom of public information, protection of media pluralism, preventing distortion of competition on inner market. Also, the significant aspect of legislation harmonization with European acquis has been achieved, although it remains to be seen to what extent the changes will improve situation for media in Montenegro.
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Selena Tasic, Programme Manager at Public Policy Institute
Marijana Zečević, Associate Researcher at Public Policy Institute
This article has been published on the website fairpress.eu.