Undermining democracy to save money: The unexpected and illegitimate closure of the Greek public service broadcaster

It’s no wonder why the Greek government’s decision of 11/06/2013 to shut down ERT, Greece’s public service broadcaster, has received wide coverage from both national and international media outlets: Not only is this decision unconstitutional but it has also taken e-v-e-r-y-b-o-d-y (citizens, journalists, the EU governance and Greek Parliamentarians themselves) by surprise. I admit that the moment I was informed about ERT’s closure I wanted to react immediately, I decided, however, to wait for a couple of weeks and see how the situation would evolve as a result of this over-hasty decision. As I expected, political stability, which is very fragile at the moment, has been severely damaged. A few days ago, one of the three parties forming the coalition government pulled out of this (admittedly unsuccessful) arrangement (New Democracy, the party that came first after the 2012 general elections and leads the coalition government, decided to close ERT without consulting with the other two, PASOK and DHMAR). DHMAR’s withdrawal means a government majority of just three in Parliament![1] Thus, the decision to shut down the public broadcaster has first and foremost created a climate of political uncertainty. Yet, ERT’s closure does not only undermine Greece’s ability to manage its crisis but it also gives rise to a number of social and legal issues that make any European citizen wonder how far is a government willing to go to (supposedly) lead a country out of recession.

When, why and how did this happen?       

On June 11, 2013, Greeks watching the news on the main TV channel of ERT saw their screens go to black. In order to meet the requirements set by the Troika (a commission consisting of representatives of the International Monetary Fund, the European Commission and the European Central Bank that is charged with monitoring the Euro debt crisis), the government had to sack a certain amount of public sector employees by June 2013 and closing ERT, employer of more than 2,500 persons, seemed like an ideal solution. “ERT is a case of an exceptional lack of transparency and incredible extravagance. This ends now” [emphasis added], government spokesman Simos Kedikoglou said in an attempt to justify the government’s decision.[2] An oxymoron, however, arises. The history of modern Greece is rife with examples of corruption and mismanagement of public funds. This culture of “getting away with everything” is precisely what led the country to a deep and unprecedented financial and institutional crisis but also the reason why access to information has become more relevant now than ever before. How can therefore the governors believe that the best way to save money is to violate a right whose exercise is one of the most effective means to address recession issues? One does not need to be a media expert to understand that only through access to the media can Greeks understand the harsh measures they need to comply with and communicate to the government their dissatisfaction. Isn’t this the reason why ERT was established to begin with (i.e. provide the citizens with accurate and objective information and serve as a communications conduit between the governors and those who are governed)?

 Shutting down ERT through the back door

Well aware of the fact that the Parliament would not support this decision, the party leading the coalition government decided to adopt an “act of legislative content” instead of following the regular legislative procedure leading to the enactment of a law.

More particularly, pursuant to Article 44(1) of the Greek Constitution, “under extraordinary circumstances of an urgent and unforeseeable need, the President of the Republic may, upon the proposal of the Cabinet, issue acts of legislative content” [emphasis added].[3] Adoption of an act of legislative content would allow the Greek government to gain time: The aforementioned provision lays down that “such acts shall be submitted to Parliament for ratification […] within forty days of their issuance […]. Should such acts not be submitted to Parliament within the above time-limits or if they should not be ratified by Parliament within three months of their submission, they will henceforth cease to be in force” [emphasis added].  In other words, the government was hoping to have 40 + 90 days at its disposal to prepare a new plan for a public service media operator. By that time, ratification of the act by the Parliament would not be needed anymore.

Legal implications: Violations of Constitutional and EU law

In (desperate) need of a legal basis, the act of legislative content[4] ordering ERT’s closure broadly refers to the laws that were enacted to address crisis-related problems. These laws indeed allow the adoption of urgent measures but the act in question does not -EVEN REMOTELY- substantiate why shutting down the public broadcaster was necessary to achieve recovery objectives (why firing ERT employees was more adequate or urgent than firing other public sector employees?). That being said, the following questions automatically arise: Shouldn’t the least onerous measure be preferred in order to achieve a certain goal? If reorganizing ERT is a matter of life and death (I am not a State auditor but I imagine things are pretty bad), couldn’t the governors order ERT to keep news programs instead of deciding to shut down the operator altogether? And, shouldn’t the fact that ERT performs a special mission to objectively inform the citizens be balanced against recovery objectives? What I am trying to say here is that, even if the “urgency” criterion were justified, this act is clearly in violation of the principle of proportionality (a fundamental principle of both Greek and EU law).

Moreover, said legislative act breaches Article 15(2) of the Greek Constitution establishing the State’s duty to protect and promote media pluralism (let me note here that the Greek Constitution is one of the very few European Constitutions explicitly referring to media pluralism). Performance of this duty must be considered against the following: First, unlike other countries such as Germany, Greece has only one public broadcaster. In other words, ERT is the only alternative to commercial television (i.e. private interests). Second, as a result of the crisis, Greek private media have “collapsed as advertising revenue has plummeted”.[5] Most Greek media companies face insurmountable financial difficulties that have forced them to implement massive job and salary cuts (according to union leaders, unemployment among journalists currently stands at 50%). Finally, it should be borne in mind that, in the absence of ERT, Greeks in the east and some islands – where signal coverage is poor – may have to rely on Turkish broadcasters across the border![6] In light of the above, it becomes clear why the State needs to keep financing the provision of public service broadcasting services –even (or especially) now that public (and private) funds are scarce.

Furthermore, and while this may surprise many, the act ordering ERT’s closure is also in violation of EU law.

I am not referring to the Amsterdam Protocol,[7] a primary EU law instrument which has been used extensively to justify the granting of State aids to public broadcasters (it is recalled that, pursuant to Article 107(1) TFEU, State aids are, in principle, prohibited on the grounds that they distort competition within the EU). In accordance with the Protocol, which endorses the role of public broadcasting in fulfilling the democratic and cultural needs of a given society and acknowledges the need to preserve and promote media pluralism, it is the right of the Member States to decide whether or not to introduce a public broadcasting system, and if so, to define and organize the public service remit in the manner of their own choosing. In other words, at any given moment, Greece, like any other member of the EU, could decide to close its public broadcaster(s) thereby adopting a more commercial approach to the media sector.

I am actually referring to Article 11(2) of the Charter of Fundamental Rights establishing the Member States’ and the EU’s obligation to respect media pluralism. Surely, Article 51 of the Charter explicitly lays down that the Member States are bound by the Charter only when implementing EU law. But, aren’t the laws that the Greek government adopted to address crisis-related problems laws implementing what the EU legislative and executive powers have been dictating in order to achieve recovery? In light of this, Greece’s decision to shut down ERT on austerity grounds could also be perceived as a breach of Article 7 TEU, which equips the EU institutions with the means of securing that all Member States respect the values on which the Union is based such as the rule of law, human rights and democracy.[8]

What the above analysis clearly shows is that the act of legislative content is in breach of a number of constitutionally recognized principles and therefore justifies action against the Greek government on both national and EU level. On national level, a few days after the act was published, the Greek Court of Cassation suspended its implementation and ordered the Greek government to restore ERT.[9] On EU level, while the Troika claimed it had “not sought the closure of ERT”, a statement the veracity of which has been questioned,[10] the institutions have not done anything to ensure that the public broadcaster starts functioning again.

Mobilization within and beyond Greek frontiers        

ERT’s closure undoubtedly gives rise to many legal issues. However, the wave of reaction that it triggered within and beyond Greek frontiers is far more interesting. I am referring to the unprecedented pressure exercised on the Greek government by citizens, political parties, several international organizations and public broadcasters of other countries and I feel the need to highlight some of the most important events that took place over the past two weeks. After the Greek authorities confirmed that ERT had been disbanded, journalists’ unions called a 24-hour strike across Greece’s broadcasters,[11] a decision which is in clear contradiction with a business-oriented approach (in other words, commercial stations would normally be expected to continue to broadcast so as to take advantage of the situation/generate revenues from advertising). Protest rallies were held in support of ERT’s staff, with thousands rallying outside ERT’s headquarters in Athens. International media associations such as the International Press Institute and the South East Europe Media Organization called on the Greek government to reverse its decision. It is also worth mentioning that the President of the European Broadcasting Union (EBU), Jean-Paul Philippot, went to Athens to hand over a petition signed by 51 European directors general. What I find, breathtaking, however, is that ERT continues to operate in spite of its official closure: Its employees refuse to leave their posts and the EBU maintains ERT’s TV and radio frequencies via a live stream on the EBU website until the national broadcaster is able to resume full services to domestic audiences.[12] What these initiatives plainly demonstrate is that public television still matters to many and that the relationship between the latter and democracy is not just a point of discussion for political elites and academics.

What now?

I was advised by older and much wiser people to see the crisis as an opportunity to build a better future for my generation and the ones to follow. I would advise the Greek Parliament to do the same with ERT. I don’t deny that wasting of public funds has taken place more than once. But then again, it was the governors’ responsibility to create a framework within which ERT could perform its public service mission without overspending. What did the Greek authorities do to ensure that the scheme supporting ERT complies with the principles of transparency and proportionality enshrined in the Commission’s Broadcasting Communication?[13] Well, not much. Nor have the Greek authorities done much to reposition ERT in the digital era (i.e. to adopt measures supporting the provision of digital media services, something which is inevitable especially if we want public media to be a point of reference for younger generations). All in all, ERT undoubtedly needs reform, both institutional and financial. In the meantime however, public authorities should treat ERT as a fundamental pillar of Greek democracy that needs restructuring, not as a part that suffers from gangrene and needs to be chopped off. This reform should take place having in mind that ERT’s radio was not silenced neither during the German occupation nor the military junta.[14] After all, Greeks have made it clear that they don’t mind paying an extra 4,30 euro per month to access ERT.

Proposals for the new scheme are expected by the end of this month. Stay tuned.