The Hungarian Media Council’s resolution about changing its own Code of Procedure raised criticism among media lawyers and opposition

The Hungarian Media Council was supposed to take a resolution on the planned fusion of Axel Springer and Ringier. However, Resolution 223/2011 (II. 9.), which bears the title „decision of the specialised authority on fusion of Axel Springer AG and Ringier AG”, is not about the fusion, but about an amendment to the Media Council’s Code of Procedure. This enables the Council to appoint a “Coordinator” who may decide in procedural issues on behalf of the Media Council, and then (in the next paragraph) empowers the President of the authority to take procedural decisions in the named case on behalf of the Media Council.
However, the amendment of the Code of Procedure applies not only in the named case. Making such an amendment to the Code of Procedure in a resolution that appears to be about a single case is harmful to the legal security. What’s more, the law does not explicitly allow that the Council might subdelegate any of its rights to any person and it is debated, whether the Media Council did violate the law by this move.
Finally, but most importantly: empowering the President to take decisions personally allocates even more power to the already too strong presidential position. (She is president of the Media and Telecommunication Authority and of the Media Council, responsible for appointing the head of the Public Service Media and Property Fund, and the Media Commissioner). The change further concentrates the power in the hands of one person – a person who is directly and solely appointed by the Prime Minister for nine years.
The reply of the Media Council was published by the Hungarian News Agency (MTI) which now operates as the single concentrated newsroom for public service television in Hungary. The publication said that the Media Council follows the laws in all cases and decides as a body in all cases. It held that this resolution did not rewrite the media law, it did not give new rights or competences to the President of the Council, and that the „measurement made in the interest of the faster decision-making does not affect the jurisdiction of the Media Council”. It just makes the procedure easier and faster – it said, – because the media law provides very short deadlines (20 days in this case) therefore, in order to keep the deadline, speeding up the procedure and amending the Code of Procedure was necessary.
However, since the Council has wide powers of investigation, even procedural issues can decide the outcome of a case and affect constitutional rights. Among others, procedural rights of the Council – and since this decision, of an appointed Coordinator – are: extending the procedure to another illegal action (Section 149. Act on Media and Mass Communication); officially cite a person and order that he or she is apprehended by the police (Section 48. Act on Administrative Procedures); allow another administrative body to learn about documents treated confidentially (Section 153. Act on Media and Mass Communication); examine, copy or excerpt any document or tool relating to media services, publication or distribution – even if it contains secrets protected by law (Section 155 Act on Media and Mass Communication); oblige the client, other participants of the procedure, their commissioners, employees, or anyone else who has any legal relationship to the client or other participant of the procedure – in exceptional cases any other person or organisation – to provide data orally or in writing, in a format defined by the authority (or the Coordinator) that is suitable for comparison, or any other information (Section 155 Act on Media and Mass Communication); and oblige the client to make a declaration or provide data, under threat of a fine (up to EUR 92 000 or HUF 25 million for organisations, and EUR 3700 or HUF 1 million for natural persons).
The final resolution
The final resolution regarding the fusion of Axel Springer and Ringier was taken on 14th April, 64 days after the resolution discussed above – as seen, the alleged goal to „speed up” the procedure was not fulfilled by the assignment of power (unless we assume that the body would have taken its resolution even later.)
The final resolution 465/2011. (IV. 14.) – surprisingly – rejected the approval from Axel Springer and Ringier to carry out their intended fusion. The official reasoning is not accessible online to the public because it is in an appendix not published online. It is known only from the press release of the authority that the fusion would have „obviously and significantly threatened the right to access diverse information.”
About the fusion
Axel Springer and Ringier have announced their intention to create a joint company on 23rd May 2010, in order to consolidate its Polish, Czech and Hungarian subsidiaries of Axel Springer and the Serbian, Slovakian, Czech and Hungarian interests of Ringier. Only four months later the new mega-corporation called Ringier Axel Springer Media AG started its operation and received green light from the competition authorities in Poland, Serbia, Slovakia, Czech Republic, Switzerland, Germany and Austria – all affected countries. The Hungarian Competition Authority would have approved it too, had the Media Council not denied its approval, more than a year after the intention had been announced. The Competition Authority’s procedure started in spring 2010. The new Media Authority was formed in autumn 2010 while the new media act was passed in 2010 December and stepped into life on 1st of January 2011. According to the new law, the Media Council – which has jurisdiction above the printed and online press, too – must be consulted, and the Competition Authority must take its opinion in consideration. The law allows only that if the Media Council has approved a fusion, the Competition Authority still can deny it – but not the other way around. Ironically, the denial of the fusion was based on a law and passed by a body that had come into life long after the start of the case.
Ringier has three of the country’s best-selling national daily papers (Népszabadság, Blikk and Nemzeti Sport) and several entertaining and youth magazines. Axel Springer has eight regional daily papers and one national business daily (World Economy) and several thematic magazines.